COMMR. OF CUSTOMS (PORT) Vs. INDIA CARBON LTD.

JUDGEMENT

(1.) REVENUE came in appeal challenging order passed by Commissioner of Customs (Appeals) vide Order -in -Appeal No. Kol/Cus/4/CKP/2003 dated 12.6.2003 setting aside the order -in -original held that refund of levy not realizable is not hit by bar of unjust enrichment.

(2.) THE issue before the ld. Commissioner (Appeals) was whether cess @ Rs. 10/ - per MT was leviable on imported raw petroleum coke falling under Sub -heading No. 2713.11 under the provisions of Coal Mines (Conservation and Development) Act, 1974 and whether doctrine of unjust enrichment applies for refunding an unrealizable levy. That Authority held that cess was collected erroneously on the ground that raw petroleum coke falls outside the purview of the Coal Mines (Conservation and Development) Act, 1974. and should be refunded and bar of unjust enrichment does not apply.

(3.) LD . DR appearing for the Revenue submitted that to get refund Respondent has to meet the test of unjust enrichment following judgment of the Hon'ble Supreme Court in the cases of Mafatlal Industries Ltd. v. Union of India and Ors. Reported in 1997 (5) SC 536 and SRF Ltd. v. Asstt. Collector of Central Excise, Trichy.