BLACK DIAMOND BEVERAGES Vs. COMMISSIONER OF CUSTOMS, CALCUTTA

JUDGEMENT

(1.) THE dispute involved in the present appeal is the refund claim of Rs. 64,830/ - rejected by the authorities below on the ground of unjust enrichment. The said refund claim became due to the appellants as a result of excess payment of duty on import of one Ink Jet Printing Machine utilised by them for the purpose of printing of date/batch No. etc. on the crown after bottling of soft drinks. The appellants claim for benefit of notification No. 125/86 -Cus. read with Notification No. 62/93 -Cus. has been accepted by the authorities, but, refund claim has been rejected on the ground that the same amounted to unjust enrichment.

(2.) SHRI K.K. Banerjee, ld. Adv. appearing on behalf of the appellants submits that the issue is no more res integra and has been settled in a number of decisions of the Tribunal that the principles of unjust enrichment does not apply in respect of the raw materials or the capital goods imported by the assesees and used captively in their factory either for the manufacture of the the final product or in the manufacture of the final product. In this connection he relies upon latest decision in the case of Garg Furnace (I) Ltd. v. C.C.E., Chandigarh - 1998 (29) RLT 645 (CEGAT), wherein after considering all the relevant judgments it has been held the doctrine of unjust enrichment is inapplicable where the imported goods are consumed in the manufacture of other goods captively. As such he prays for allowing the appeal.

(3.) RESISTING the arguments Shri R.K. Roy, ld. JDR submits that all these decisions are in respect of the raw material imported and consumed in the manufacture of the final product, but does not deal with the capital goods imported and used in the factory of the importer for the manufacture of their end product. He also relies upon the Supreme Courts decision in the case of Mafatlal Industries - 1997 (89) E.L.T. 247 (S.C.).