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TMI Blog2011 (9) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... .H. Dahej. After initial scrutiny, deficiency memos were issued to the appellant for compliance as to certain original documents and for submission of evidences showing that the doctrine of unjust enrichment was not attracted to the subject refund claim. The appellant was, thereafter, called upon to show cause vide Show Cause Notice F.No.VIII/20-15 to 33/CUS/R/SRT/2009, dt.8.5.09, as to why their refund claims should not be rejected on the ground of unjust enrichment. After examining the submissions and scrutilizing the documents submitted by the appellant, the adjudicating authority vide Order-in-Original sanctioned the refund claim under Section 27(2) OF Customs Act, 1962, but the refund amount of Rs.2,28,20,806/- (Rupees Two Crores, Twen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I - 1993 (68) ELT 39 (Bom). He would submit that in the appellant's own case, the Hon'ble High Court has held that refund in respect of short landed goods arises and will not be covered by the provisions of Section 27 of Customs Act, 1962. He would also draw our attention to the judgment of Tribunal in the case of Godrej & Boyce Mfg.Co. Vs Collr.of Customs 2001 (134) ELT 429, Textool Company Ltd Vs. CC Chennai 1999 (111) ELT 826, CC (Import) Nhava Sheva Vs KTR Coupling Pvt.Ltd. 2008 (226) ELT 236 and submit that in all these cases, the Tribunal had held that when there is short landing of goods, any duty paid on such short landed goods will not be covered by bar of unjust enrichment. 5. Ld.SDR, reiterates the findings of both the lower aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty finally assessed, the importer of the goods shall pay the deficiency of be entitled to a refund, as the case may be. In this case, the amount of duty paid against the duty finally assessed is in excess of the duty finally assessed, therefore, the claimant are entitled to the refund of Customs duty paid in excess i.e. amounting to Rs.22820806/- as detailed above. I hold that the refund claims filed by the claimant are admissible to them." 8. This factual position remains un-contraverted by the Revenue. On the basis of above factual matrix, we have considered the submissions made by ld.Counsel as regards applicability of unjust enrichment to the case in hand, wherein admittedly, the goods were short received. We find that the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hown that before the refund is paid to the appellant, the requirement contained in sub-section (2) of Section 27 of the Act that the incidence of duty has not been passed on would have to be satisfied. The claim arose because the goods in respect of which the duty was paid never arrived in India. In that situation, there could be no question of incidence of duty being passed on. The importer could not have sold the goods or used them for any other purpose, there being nothing to sell or use." 9. Yet in another case of Textool Company Ltd, this Tribunal has held as under: "8. .......We, however, uphold the findings of the ld. Lower authority that so far as the question of unjust enrichment is in the case of goods which were short-shipped." ..... X X X X Extracts X X X X X X X X Extracts X X X X
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