CC Vs. RANGA ALLOYS LTD.

JUDGEMENT

(1.) THE Revenue has filed this appeal against order in appeal No. C3/121/97 dated 30.7.1997 by which the Commissioner (Appeals) had allowed the appeal of the assessee and granted them refund. The Revenue is aggrieved by this order on the ground that the respondent had imported 1 number of used foundry equipment lot vide BE No. 51334 dated 17.10.1995 for the clearance of the same under sub heading 8479.89 and claiming the benefit under Notification No. 49/95. The value of the goods for the purpose of assessment was arrived at after following the instructions and standing orders issued in this regard. On examination of the matter it appeared that the respondent's claim for the benefit of Notification No. 49/95 cannot be allowed as no commodity was produced by using this machine. Meanwhile the importer submitted a letter requesting for assessment of the goods under sub -heading No. 8428.39 read with Notification No. 49/95 at the basic customs duty @ 25%. The Revenue has submitted that the matter was examined in detail and a speaking order dated 28.11.1954 was passed disallowing the benefit of Notification No. 49/95 and the respondent went in appeal before the Commissioner (Appeals) who vide order in appeal dated 1.3.1996 allowed the appeal classifying the goods under sub -heading 8428.39 read with Notification No. 49/95. The Commissioner (Appeals) also allowed refund to the respondent subject to the refund procedure as envisaged under Section 2(a) of the Customs Act, 1962. Accordingly party filed refund claim and the refund claim was examined in detail and the party was asked to clarify (a) as to how the claim can be admitted after piry of six months as provided for under Section 27 of the Customs Act, 1962 as the duty was not paid under protest and refund claim was filed after the expiry of six months (b) as to how the doctrine of unjust enrichment was not attracted and the respondent was also asked to produce evidence of their account to substantiate that excess burden of duty has not been recorded as expenditure.

(2.) THE Commissioner (Appeals) has held that the concept of unjust enrichment is not applicable for captive consumption and for this he has relied upon the Judgment rendered in the case of Solar Pesticides rendered by the Hon'ble Bombay High Court which was then pending before the Hon'ble Apex Court.

(3.) THE learned SDR Shri GS Menon reiterated the grounds of appeal and stated that the since the doctrine of unjust enrichment is applicable even to the goods captively consumed and since the Judgment rendered by the Bombay High Court in the case of Solar Pesticides (supra) has been set aside by the Hon'ble Apex Court in the case of UOI v. Solar Pesticides , the incidence of duty is considered to have been passed on which raw material imported and captively consumed by the assessee for manufacture of the finished product. Doctrine of unjust enrichment is applicable even in eases of captive consumption within the meaning of Section 27(1) of the Customs Act.