TMI Blog2016 (6) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... e judgment of the Hon'ble Supreme Court in the case of Rochiram & Sons Vs. Union of India [2008 (4) TMI 45 - SUPREME COURT]. Therefore, the impugned order is unsustainable and set aside. - Decided in favour of appellant with consequential relief - Appeal No. C/353/04-Mum - - - Dated:- 4-4-2016 - Mr. M. V. Ravindran, Member (Judicial) And Mr. C. J. Mathew, Member (Technical) For the Appellant : Shri T. Vishwanathan, Advocate For the Respondent : Shri M.K. Mall, Assistant Commissioner (A.R.) ORDER Per: M.V. Ravindran: This appeal is directed against Order-in-Appeal No. 03/2004 (JNCH) dated 21.01.2004 passed by the Commissioner of Customs (Appeals), JNCH, Mumbai-II. 2. The relevant facts that arises for considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bill. They further submitted that the goods had not been used after import, and that the shipping bill had been assessed provisionally due to the samples being forwarded for testing which later on confirmed the identity of the goods. Furthermore, being an ISO certified company they could not accept deviation of their standard and hence had been compelled to reject the material which the seller had agreed to accept. They submitted documentary evidence such as correspondence with the supplier in this regard. 2.2 The Assistant Commissioner of Customs, DEPB Section, Jawaharlal Customs House, Sheva (hereinafter referred to as the lower authority ) after going through the records of the case and submissions made observed that as mentioned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The first appellate authority after following due process of law rejected the contentions raised by the appellant and upheld the order of the adjudicating authority of rejecting re-credit of the DEPB licence. 4. Learned Counsel appearing on behalf of the appellant submits that there is no dispute as to the fact that imported goods were of unacceptable quality and were re-exported as per Section 74 of the Customs Act read with standing order 7545 of 2000 dated 26.07.2000. It is undisputed that imports were under DEPB scheme and CVD paid in cash, they have complied with the procedure and hence re-credit should have been done as claimed by them; they have fulfilled main requirement of the Customs Act, 1962 of establishing identity of the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinal principle of law, which has been settled by a Bench of seven Judges of this Court in the case of Mafatlal Industries Ltd. v. Union of India, 1997 (89) E.L.T. 247 (S.C.), that refund of a claim made by the assessee can be denied on the principle of undue enrichment if the assessee has passed of the burden to the consumers. This principle would be equally applicable to the revenue as well as it cannot have the double advantage. Applying the same principle, revenue cannot be allowed to enrich itself by denying the duty drawback as well as by refusing adjustment of duty paid by way of debit in DEPB. Admittedly, in this case the parts imported by the assessee were re-exported. Once the imported parts which were found to be defective/unusa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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