2009 (9) TMI 968

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..... piers and filed Bills of Entry for their clearance for home consumption. The goods on examination were found to be old and used. It was also reported that the goods have the essential features of photocopiers without constituting a full photocopier. 3. The Assessing Officer held that : i) The declared value of the mainframes is low and is liable to be enhanced; ii) The old and used mainframes of photocopiers, being in the nature of assembly/sub-assembly of components for photocopiers, cannot be freely importable, and iii) As per the examination report, the mainframes have the essential features of a photocopier. Therefore, the imported mainframes are liable to be classified as photocopiers attracting duty @ 40% instead of .....

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..... pondent preferred an appeal before the Commissioner (Appeals). He held that the sale price of the goods in the instant case would have no relationship with the landed cost and the other cost burden such as duty, fine and penalty and therefore, the question of passing of such burden to the ultimate buyer of the goods would not arise and held that the presumption of unjust enrichment under Section 28(D) of the Customs Act, 1962 would not apply and ordered that the refund claim to be credited in the account of the respondent. Aggrieved by the same, the Revenue is in appeal before me. 7. Shri N.A.Sayyed, Ld. JDR appearing on behalf of the Revenue submits that in the identical case of the respondent, this Tribunal vide order No.A/750-755/08 d .....

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..... demption fine and penalty. To substantiate his claim he place reliance on Customs Appeal No.56/2008 in the case of M/s. United Spirit Ltd., Vs. CC (I), wherein the Honble High Court of Bombay vide its order dated 25/06/2009 held that the principles of unjust enrichment would not arise in case of redemption fine and penalty. 10. Heard. 11. On careful examination of the submissions made by both the parties, I note that the Hon ble High Court of Bombay in the matter of United Spirits Ltd., (supra) has held that the doctrine of unjust enrichment is not applicable in the matter of redemption fine and penalty. I remand back the matter to the original adjudicating authority for denovo adjudication in the light and directions of this Tribuna .....

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