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2016 (9) TMI 725 - CESTAT MUMBAI

2016 (9) TMI 725 - CESTAT MUMBAI - TMI - Refund of the amount paid as pre-deposit pending investigation along with interest - sanction of refund claim but credited to consumer welfare fund - import of branded Car, Ferrari 599-GTB - denial of benefit of Sr. No. 344(2) of the Notification No. 21/2012 dated 1/3/2002 - seizure of car - voluntary payment of customs duty with interest by subsequent buyer - later on demand of duty and interest set aside - is the refund amount rightly credited to the co .....

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e 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 of refund amount has not been passed on to any other person or otherwise. Therefore in .....

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er(Judicial) And Mr. Raju, Member (Technical) Shri. P.A. Augustian, Advocate for the Appellants Shri. Chatru Singh, Asstt. Commissioner(A.R.) for the Respondent ORDER Per Ramesh Nair This appeal is directed against Orders-in- Appeal No. 567(CRC-I)/2015(JNCH)-Appeal-II dated 30/11/2015 passed by the Commissioner of Customs (Appeals-II), JNCH, Mumbai, whereby Ld. Commissioner(Appeals) upheld the Order-in-Original dated 24/11/2014 and dismissed the appeal of the appellant. 2. The fact of the case i .....

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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 th .....

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relief. Appellant then filed Misc. Application before this Tribunal for implementation of the above order. The Hon ble CESTAT vide order dated 5/3/2013 allowed the application. On this basis, the appellant filed a letter dated 8/7/2013 seeking refund of ₹ 64,03,603/- claiming the said amount was paid as pre-deposit pending investigation. Subsequently, the Hon ble Tribunal passed further orders dated 5/3/2013 on the appellants application for enforcing the aforesaid order of this Tribunal. .....

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llant submits that the Tribunal in the order dated 9/9/2014 has clearly directed to the Commissioner of Customs, Nhava Sheva to refund 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 applica .....

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ment is not applicable. In this regard he placed reliance on the judgment in case of Dharmarajan Pillai Vs. CC, Cochin[2007(216) ELT 434]. Regarding the issue that the claim made by the importer and the amount of duty deposited by Shri. Sanjay Sunil Dutt on behalf of the importer, importer is entitle for refund. In this support he placed reliance on the decision of this Tribunal in case of Petroplus Internatinal Marketing Vs. CCE, Mangalore [2016(333) ELT 435]. 4. Shri. Chatru Singh, Ld. Asstt. .....

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. As regard the exclusion from the unjust enrichment provision, he submits that the car was admittedly imported by the appellant as an individual but immediately on import it was sold to one Shri. Sanjay Sunil Dutt therefore the condition for personal use is not fulfilled therefore unjust enrichment is not applicable in the present case. Regarding the submission of Ld. Counsel that the refund is of pre-deposit hence unjust enrichment is applicable is not acceptable for the reason that Hon ble Su .....

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ating authority has sanctioned the refund which has not been challenged by the department, therefore as regard the sanction of the refund, it attained finality. Now only issue to be decided whether the provision of unjust enrichment is applicable or otherwise. The appellant has vehemently argued that amount for which refund is sought for was paid during the investigation therefore the same is pre-deposit hence the provisions of unjust enrichment is not applicable. Hon ble Supreme Court in case o .....

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hich a person is not otherwise entitled. Section 11B of the Act or similar provision merely gives legislative recognition to this doctrine. That, however, does not mean that in absence of statutory provision, a person can claim or retain undue benefit. Before claiming a relief of refund, it is necessary for the petitioner/appellant to show that he has paid the amount for which relief is sought, he has not passed on the burden on consumers and if such relief is not granted, he would suffer loss. .....

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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 any, paid on such duty on imports made by an individual for his personal use . However in the present case, since the car was sold imm .....

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not sold therefore Tribunal held that amount cannot be credited in consumer welfare fund only on the apprehension that the importer was at liberty to sale the car at any time after import. In the present case, admittedly the car was sold before filing the refund claim therefore the judgment of Dharmarajan Pillay(supra) is not applicable in the fact of the present case. We therefore hold that considering the facts of the present case though the car was imported by an individual but not for his pe .....

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