TMI Blog2008 (5) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... l are that by an order, the Collector of Customs (as he was then known) has, inter alia , held 15,664.50 bulk litres of goods described as "Undenatured Ethyl Alcohol (Malt Spirits plus or minus 59.3% Vol.)" imported by M/s. Finacord Chemicals Pvt. Ltd. and purchased by the appellants herein, from whose premises the goods were seized, are liable to confiscation under Sections 111(d) and (m) of the Customs Act, 1962. However, as in compliance with the Hon'ble Bombay High Court orders dated 25-10-1991, 30-10-1991, the said goods were allowed to be utilized by M/s. Maharashtra Distilleries Ltd. (now known as M/s. United Spirits Ltd.) on their depositing an amount of Rs. 1,56,64,500/- and the goods are not available for confiscation, he appropriated Rs. 1,05,02,087/- out of the said deposit towards differential duty on these goods, [which is also recoverable under Section 125(2) of the Customs Act, 1962] and also appropriated an amount of Rs. 51,62,413/- towards the value of the goods (which would have been leviable as redemption fine if the goods had been available for confiscation). In the matter carried over to the Tribunal, the Tribunal, vide their Order dated 15-9-2005, ordered th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 2-1-2002 and 802/35/2004-CX dated 8-12-2004. (vii) That the pre-deposit under Section 129E was different from the orders to deposit by a Court. (viii)That the ratio of the case laws in the case of Commissioner of Central Excise, Mumbai-II v. Allied Photographic's India Ltd. reported in 2004 (166) E.L.T. 3 and Commissioner v. Pane International Ltd. reported in 2005 (188) E.L.T. A81 (S.C.), is not applicable as in the Allied Photographic's case, the Court did not concern themselves with a case, where the doctrine of unjust enrichment was applicable to the return of the amount deposited in lieu of the goods pursuant to the order of the High Court, while in the Parle's case, the issue was the return of duty paid during investigations, while this was a case of the goods, which were under seizure, and not the duty. (ix) The amount of Rs. 41,62,413/- though not appropriated as duty is to be returned as unjust enrichment is not attracted to the cases involving mere deposit. (x) There is no presumption under Section 28D for the amount deposited as fine in lieu of confiscation and the appellants are entitled to the return of the entire deposit with interest in com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rebutted the presumption, the amount has been rightly credited to the Consumer Welfare Fund. 10. The Hon'ble Bombay High Court has ordered that "in the event of it being held that the petitioners are entitled to this amount or any part thereof, on adjudication, the same shall be refunded to the petitioners together with interest @ 13% p.a." The Respondents were, therefore, legally required to find out whether, on adjudication, the appellants were entitled to the refund. As already stated earlier, the Courts, including the Apex Court in the case of Mafatlal (supra) and Sahakari Khand Udyog v. CCE reported in 2005 (181) E.L.T. 328 (S.C.), have repeatedly affirmed that for any refund as a consequence of an appellate order, the doctrine of unjust enrichment has to be applied before the amount is refunded to the claimant. When the said doctrine was invoked in the case of the appellants, it was found that the had not rebutted the presumption of duty haying been passed to the buyer in the instant case, particularly in view of the decision of the Hon'ble Supreme Court in the case of UOI v. Solar Pesticides reported in 2000 (116) E.L.T. 401 (S.C.). Thus the contention of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the controversy. The facts of the case show that a dispute on valuation arose after the importation of the goods and M/s. Parle International had to deposit an amount during the proceedings of adjudication. The Hon'ble High Court held that the deposit made during the process of adjudication could not be considered as deposit of duty and hence the doctrine of unjust enrichment would not be applicable in this case. Para 21 of the order is extracted : "21. Even considering the facts of the present case it cannot be said that it is a case of unjust enrichment and, therefore, the amount which is deposited by the petitioner is required to be refunded when the order of the appellate authority is set aside. On what basis the Revenue contends that this is unjust enrichment has not been placed before us. The Revenue could not point out as to the difference between the amount deposited during the appeal and amount deposited during the adjudication proceedings. As we have said earlier, the amount of duty paid under Section 3 of the Act is the duty and whatever is claimed subsequently can be said to be duty only after the order passed by the adjudicating authority is finally confirmed. Till t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isional release of the goods. For the same reason, Suvidhe Ltd. case (supra) cited by the learned Advocate of the appellants, which dealt with the refund of the pre-deposit made under Section 35F of the Central Excise Act, 1944 will not apply to the facts of the present case. 13. The appellants were using the goods for further manufacture of India Made Foreign Liquor. The goods were captively consumed and hence the doctrine of unjust enrichment was applicable as per the decision of the Hon'ble Apex Court in the case of Solar Pesticides (supra). 14 . As already explained earlier, the directions of the Bombay High Court to deposit the amount was a condition for the release of the goods, which were seized under Section 110(1) of the Customs Act, 1962. Such amount was to be considered as a security deposit against the provisional release of the goods. Hence the decision of the Supreme Court in the case of Parle International (Supra) will be squarely applicable in this case. In any case, the doctrine of unjust enrichment is applicable in case of any refund being given to the party. This is based on the decisions of the: (a) Supreme Court in the case of Sahakari Khand Udyog ..... X X X X Extracts X X X X X X X X Extracts X X X X
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