TMI Blog2016 (9) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... nrichment is not applicable in case where duty and interest, if any, paid on such duty on imports made by an individual for his personal use. The issue raised by the appellant that though duty for which refund was sought for paid by the subsequent buyer of the car Shri. Sanjay Sunil Dutt, appellant is entitle for refund, we are of the view that irrespective whether duty was paid by a person other than the importer but in connection with the import made by the appellant, it has to be considered that duty was paid by the appellant only therefore only for the reason duty was paid by the Shri. Sanjay Sunil Dutt refund cannot be denied. It is also observed that appellant has not produced sufficient documents to establish whether the incidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit of Sr. No. 344(2) of the Notification No. 21/2002 dated 1/3/2002 was wrongly availed by the appellant. The car was then seized from Shri. Sanjay Sunil Dutt, the legal owner of the car. Shri. Sanjay Sunil Dutt voluntarily deposited the duty of ₹ 52,25,502/- towards Customs Duty and ₹ 11,78,101/- towards interest (Total ₹ 64,03,603/-). The show cause notice was issued to the appellant and vide Order-in-Original dated 8/8/2012, the benefit of Sr. No. 344(2) of Notification No. 21/2002 dated 1/3/2002 was denied and consequential differential duty, fine and penalty was imposed against the appellant. The amount of ₹ 64,03,603/- voluntarily deposited by Shri. Sanjay Sunil Dutt on behalf of the appellant was appropr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und the amount of pre-deposit made by the appellant within the period of 15 days from today along with interest in accordance with law. In view of this direction, department could not have credited the amount in consumer welfare fund. He further submits that the amount for which the refund is sought for is pre-deposit and provision of unjust enrichment is not applicable on the refund of pre-deposit amount. In this regard he placed reliance on the judgment in case of Assistant Collr. Of Cus. Vs. Anam Electrical Manufacturing Co. [1997(90)ELT 260)(S.C.)]. He further submits that even if the provisions of unjust enrichment is applicable in respect of refund of pre-deposit but in the present case import was made by the appellant as an individua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l that the refund is of pre-deposit hence unjust enrichment is applicable is not acceptable for the reason that Hon ble Supreme Court in the case of Sahakari Khand Udyog Mandal Ltd. Versus Commissioner of C. Ex. Cus.[ 2005 (181) E.L.T. 328 (S.C.)] held that all the refund claim should be subject to Section 11B which pari materia to Section 27 of the Customs Act therefore even in case of pre-deposit unjust enrichment is applicable. 5. We have carefully considered the submissions made by both sides and perused the record. 6. As regard the admissibility of the refund, as of now there is no dispute as the Adjudicating authority has sanctioned the refund which has not been challenged by the department, therefore as regard the sanction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n therefore it cannot be said that pre-deposit is not duty therefore unjust enrichment is not applicable. Once the amount was paid as duty irrespective whether it was payable or otherwise, refund of the same has to compulsorily undergo the test of unjust enrichment as provided under Section 27 of Customs Act, 1962. We are therefore of the view that in the present case refund is required to be tested under the provisions of unjust enrichment as provided under Section 27. We observed that though the car was imported by the appellant in individual capacity but it is admitted fact that immediately after import the car was sold. In the Section 27 clause(b) provisions of unjust enrichment is not applicable in case where duty and interest, if a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st enrichment could not have been raised, we are of the view that this Tribunal directed the departmental authority to grant refund alongwith interest in accordance with law, therefore the issue of unjust enrichment could not have been avoided by the adjudicating authority. It is applicable in the facts of the present case therefore, we do not find any error in applying the provision of unjust enrichment for disposing the refund claim by the Adjudicating authority. As regard the issue raised by the appellant that though duty for which refund was sought for paid by the subsequent buyer of the car Shri. Sanjay Sunil Dutt, appellant is entitle for refund, we are of the view that irrespective whether duty was paid by a person other than the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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