PUJA ENTERPRISES Vs. COMMISSIONER OF CUSTOMS (EP)

JUDGEMENT

(1.) THIS appeal is directed against impugned Order -in -Appeal in which Commissioner (Appeals) upheld the order of the adjudicating authority, who sanctioned the refund but credited the same to the Consumer Welfare Fund. The facts are that the appellant imported 'Vitamin B2 Riboflavin' and filed a Bill of Entry. The goods were restricted for import in terms of EXIM Policy. The appellant claimed to be a transferee of Advance License issued to M/s. Betul Oil and Flour Mills and submitted copy of the transfer letter. However, they were unable to produce the original Advance License. Therefore, the goods were confiscated with option to redeem the same on payment of fine and penalty was also imposed. The matter was litigated upto the High Court and the Hon'ble High Court had granted interim relief to the importer on payment of duty and submission of Bank Guarantee. The goods were released accordingly after being reassessed provisionally on payment of duty of Rs. 6,13,139/ -. Ultimately, the case was adjudicated by the Commissioner of Customs, who held that the goods were covered by the Advance License and ordered re -assessment of Bill of Entry by suitable debit in the licenses. Therefore, the appellant applied for refund of Rs. 6,13,139/ - along with interest of Rs. 27,717/ -, total amounting to Rs. 6,40,856/ -. The adjudicating authority sanctioned the refund but credited the same to the Consumer Welfare Fund as the bar of unjust enrichment was not cleared.

(2.) THE learned Counsel for the appellant states that the goods were initially cleared under provisional assessment, hence passing of duty to the customers cannot be inferred. He relied on various judgments, such as, Shethia Audio Video Pvt. Ltd. - : 2003 (161) E.L.T. 452 (Tri. -Mum.), Brindavan Processors Pvt. Ltd. : 2006 (196) E.L.T. 61 (Tri. -Bang.) : 2007 (8) S.T.R. 111 (Tribunal) and Gopi Krishna Processors Pvt. Ltd. : 2007 (210) E.L.T. 529 (Tri. -Del.), in which the importance of validity of C.A. certificate has been emphasized. He referred to the certificate submitted by the C.A., Ref. No. 13/2013 to show that the sale proceeds of the relevant goods were less than the purchase cost. The learned Counsel also relied on the decision of the Tribunal in the case of Veekay Products Ltd. vide Order No. A/249/13/CSTB/C -I, dated 24 -1 -2013 : : 2013 (296) E.L.T. 363 (Tribunal) holding that bar of Section 28D is not applicable to refund of pre -deposit.

(3.) I have considered the submissions of both sides. The first point to be examined is whether the amount paid was on account of duty or not. It is clear from the facts that consequent to Hon'ble High Court's direction, an amount of Rs. 6,13,139/ - was paid as duty even though the Bill of Entry was assessed provisionally. Therefore, the case of Veekay Products Ltd. (supra) is not applicable.