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TMI Blog2015 (5) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... ported against invalid licenses. Accordingly, demand of customs duty was raised against respondent nos. 1 and 2. It also proposed confiscation of the goods and penal action against the respondents. The Collector of Customs vide Order-in-Original dated 28.02.1995 upheld the misdeclaration and undervaluation and further held respondent no. 1 to pay customs duty of Rs. 1,63,74,648/- along with penalty of Rs. 1,64,00,000 and goods to be confiscated. Respondent no.2 goods valued at Rs. 83,04,501/- to be confiscated. However, the same were provisionally released on furnishing Bank Guarantee of Rs. 1 crore, differential duty to the tune of Rs. 77,34,994/-. A further penalty of Rs. 2.63 crores was imposed. Respondent no. 3 was directed to pay Rs. 20 lakhs as penalty, respondent no. 4 was imposed the penalty of Rs. 1 crore and respondent no. 5 was to pay Rs. 1 lakh as penalty. Aggrieved, the respondents filed appeals before the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as 'CESTAT') and the CESTAT vide its final order dated 10.09.2003, partly allowed the appeals thereby setting aside the order of the Collector regarding enhancement of the unit pric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Bussa Overseas Properties Ltd. vs. CC (I) Mumbai 2002 (148) ELT 328, the Tribunal held that over-proof whisky having more than 55% alcohol content by vol. is a concentrate of alcoholic beverages and until this decision, a practice to allow clearances of similar goods under REP licence was prevalent. We also note that a long period has lapsed since the import and that the goods are raw materials for manufacture of alcoholic beverages that this is not a case of duty evasion as the finding on undervaluation has on set aside by us thereby reducing the gravamen of the charge. The assessable value of the goods imported by FCPL is Rs. 15,08,040/- while the assessable value of the goods imported by SRN is Rs. 22,78,578/-. The fine levied by the Commissioner on FCPL is Rs. 51,62,413/- and that of SRN is Rs. 22,65,006/-.We are not able to fathom the logic behind fixing the above quantum of fines. There is nothing in the impugned order to indicate the basis on which the quantum was arrived at. Having regard to the above factors including the fact that the import Policy was liberalised subsequently and that only the charge of ITC violation has been sustained by us, we reduce the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded to the appellant with interest at the rate of 13 per cent per annum which was the rate of interest payable by the Nationalised Bank on Fixed Deposits at the relevant time. The matter was proceeded against M/s. S. R. Nagpal and company and M/s. Finacord Chemicals Private Limited. The Order-in-Original was passed by the Commissioner against those firms. However ultimately the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to 'CESTAT') in the appeals filed by them, gave them substantial relief by allowing the appeals partly. The issue as to whether there was an under-invoicing in the import of the goods was decided in favour of the said parties and on that ground, the additional demand of duty was struck down. Even the redemption fine was reduced to Rs. 10 lakhs and as far as penalty is concerned, it was completely knocked off and set aside. We may mention here that against that order passed by the CESTAT, the Department had filed appeal and this court has affirmed that part of the order of the CESTAT dismissing the appeal of the Department. The effect thereof is that even qua M/s. S. R. Nagpal and company and M/s. Finacord Chemicals Private Lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the principle of unjust enrichment would not be attracted. It is this judgment which is under challenge in the present proceedings. From the aforesaid narration of facts, it is clear that insofar as the appellant is concerned, it had not imported the goods in question. The importers were M/s.S.R.Nagpal and company and M/s. Finacord Chemicals Private Limited. The dispute of under-invoicing was also qua the said two importers on the basis of which custom was claiming lesser payment of duty by the said importers. In the adjudication proceedings, while imposing the duty against the said importers, a categorical finding was also recorded at the same time that the appellant had no role to play therein and was a bona fide purchaser of the goods from the said importer which were imported by them. It is also manifest that the appellant came into picture only when the goods purchased by the appellant were seized by the custom department and he had to approach the High Court of Bombay for the release of those goods. What is significant is that as a condition for the release of the said goods, interim order directing the appellant to deposit the amount in the sum of Rs. 1,56,64,500 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01 dismissed the appeal. Even though the Apex Court did not spell out the reasons for dismissal, it can well be construed in the light of its earlier judgment in the case of Suvidhe Ltd. and Mahavir Aluminium that the law relating to refund of pre-deposit has become final." It is the order dated 07.08.1996 which was passed by this Court in Union of India v. Suvidhe Ltd. dismissing the special leave petition which was filed by the Union of India against the judgment of the High Court of Bombay in Suvidhe Ltd. v. Union of India [1996 (82) ELT 177. Since the special leave petition was dismissed in limine, we would like to reproduce para 2 of the judgment of the High Court wherein the High Court had observed that in case of such deposits, provisions of Section 11B of the Customs Act will have no application. This para reads as under: - "2. Show cause notice issued by the Superintendent (Tech.) Central Excise to the petitioner to show cause why the refund claim for Excise Duty and Redemption fine paid in a sum of Rs. 14,07,410/- should be denied under Section 11B of the Central Excise Rules and Act, 1944 (sic) is impugned in the present petition. The aforesaid amount is deposited by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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