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2009 (6) TMI 273 - CESTAT MUMBAIClaim for refund of redemption fine and penalty rejected on the ground of unjust enrichment - As held by the apex court in Sahakari Khand Udyog Mandal Ltd. v. Commissioner of Central Excise & Customs, the doctrine of unjust enrichment is based on equity and, therefore, irrespective of applicability of Section 27 of the Customs Act, the doctrine could be invoked to deny refund to a person who is otherwise entitled. - regards claims for refund of amounts not representing duty, the above doctrine remains operative in common law based on equity. It is therefore applicable to a claim for refund of fine or penalty – held that doctrine of unjust enrichment is applicable – burden is on department to show that incidence of duty is passed - in my considered view, the doctrine of unjust enrichment based on equity would work in the reverse direction vis-à-vis the doctrine as embodied in Section 11B of the Central Excise Act, Section 27 of the Customs Act and similar statutory provisions. - Fine and penalty stand on a different footing. Both are penal in nature. The law does not permit transfer of penal liability by a person who has been found to have committed an offence, to another person who has not. In other words, a penal liability is not transferable. Neither the Customs Act nor the Central Excise Act provides for recovery of fine or penalty by a person from any other person.
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