9911796707
TMI Blog2004 (6) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... 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)] se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8) 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. 4. Issue No. (ii) : Both the lower authorities held, with reference to the provisions of Section 27 of the Customs Act, that Shri Chetan Kothari was not competent to file the refund claim on behalf of M/s. Seaking Marine Services. The reasons for this view, as stated in their orders, are that Shri Chetan Kothari was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suant to CEGAT's Final Order No. A/963-966/99-NB, dated 29-10-1999 on behalf of the company. We also authorize Mr. Chetan V. Kothari, if necessary, to appear before you for presenting our case and answering all the information and answer queries that may be required by you. We also authorise Mr. Chetan V. Kothari to collect the cheque for refund from you on our behalf and give a valid discharge of the same. For Sea King Marine Services Sd./- Partner" This letter is by an unnamed partner of the appellant-firm, whose signature, however, looks like that of Shri Bhavesh Gandhi's and does not appear to be forged. We have also come across a copy of a notarised affidavit dated 30-7-2001 of Shri Bhavesh Gandhi, wherein the deponent has declared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2001 of Shri Bhavesh Gandhi. But we have not found any reference to any affidavit dated 6-7-2001 in the order passed by the lower appellate authority, nor is any copy of such affidavit available on record before us. 5. We have noticed that any affidavit dated 30-7-2001 of Shri Bhavesh Gandhi was not produced before the Commissioner (Appeals). It further appears that, though it was claimed before the lower appellate authority that the firm had subsequently (i.e., subsequent to 8-11-2000) passed a resolution authorizing Shri Chetan Kothari to file the refund claim, no evidence thereof was placed on record. No such evidence has been adduced by the appellants before us, either. The authority letter dated 8-11-2000 claimed that Shri Chet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gandhi qua partner of the firm. We have also perused copies of these challans available on record, which describe the payments as "payments towards the Customs duty evaded on import cargo cleared against Bond Bills of Entry and sold in the local market". Relying on the Tribunal's decision in Sun Export Pvt. Ltd. v. CC [2003 (156) E.L.T. 801], DR has also contended that the refund claim filed by a person who had not paid the duty cannot be allowed. DR has further contended that the bar of unjust enrichment is applicable in respect of past period also. In this connection, he has relied on the Supreme Court's decision in Union of India v. Jain Spinners Ltd. [1992 (61) E.L.T. 321 (S.C.)]. Ld. SDR has also relied on the Supreme Court's judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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