SEAKING MARINE SERVICES Vs. COMMISSIONER OF CUS. (PREV.)

JUDGEMENT

(1.) From the available records, it appears that M/s. Seaking Marine Services - a partnership firm, of which one Shri Bhavesh Gandhi was a partner - had imported numerous consignments of Seamless Stainless Steel Pipes etc. and warehoused the goods during 1992 -94; that the goods were cleared from warehouse without payment of duty and sold to buyers in the local market; that a case of evasion of customs duty was booked against the appellant -firm by the department and the same was investigated; that, during the course of investigations (September - November '97), the appellants deposited certain amounts towards customs duty; that, in adjudication of the show cause notice issued to the firm and its partner, the Commissioner of Customs by order dated 10 -3 -98 appropriated the said deposits towards demand of duty on the goods and imposed penalties on the firm and its partner; that the Commissioner's order was challenged in appeals preferred to this Tribunal; that the Tribunal by Order Nos. A/963 -966/99, dated 27 -10 -99 [2000 (116) E.L.T. 220 (Tribunal)] set aside the demand of duty on those goods which had been cleared from warehouse in the State of Gujarat; that one Shri Chetan Kothari filed an application with the department, claiming to represent the appellant -firm, on 11 -11 -2000 for refund of duty of Rs. 63,08,933/ -; that the department by show cause notice dated 16 -5 -2001 proposed to reject the refund claim on the grounds of time -bar and unjust enrichment and on the further ground that the claim was unauthorised; that the notice was contested by the claimant's Counsel; that the adjudicating authority rejected the department's plea of limitation but disallowed the refund claim on the other two grounds; that, in the appeal preferred by the party, the Commissioner (Appeals) held that the claim was liable to be rejected on all the three grounds; and that the party has filed the present appeal against the order of the first appellate authority.

(2.) We have heard both sides and considered the submissions. We have three issues before us : - (i) Whether the refund claim was time -barred; (ii) Whether Shri Chetan Kothari was competent to file the claim; (iii) Whether the claim was hit by the bar of unjust enrichment.

(3.) Issue No. (i) : We find that the decision of the original authority on this issue was in favour of the party. That authority had held that the bar of limitation was inapplicable to the refund claim of Rs. 63,08,933/ - vide paragraphs (20) and (28) of the said authority's order. This finding of the adjudicating authority was never challenged by the department and the same stood final and binding on the Revenue. It was not open to the first appellate authority to reopen the issue in the appeal filed by the party. We, therefore, set aside the finding recorded by the Commissioner (Appeals) on the above issue. The original authority's finding on the issue will stand.