2011 (5) TMI 789 - AT - Customs

Prayer for restoration of appeal - Revenue s grievance is that while deciding the appeal Tribunal has not taken into account the Cross Objection filed by the Revenue, no mention of Cross Objection filed by the Revenue in the said order of the Tribunal Held that - neither of the judgments on which placed by Revenue deals with the disputed issue as to whether the provisions of unjust enrichment would get attracted in respect of consequent refund arising out of finalization of provisional assessment, Cross Objection filed by the Revenue is rejected

Summary

Issues:
1. Restoration of appeal by the Department.
2. Consideration of Cross Objection filed by the Revenue.
3. Grant of refund of duty and treatment of Cross Objection as written submission.
4. Application of unjust enrichment provisions before the amendment of Section 18 of Customs Act.
5. Interpretation of judgments by various High Courts and the Supreme Court.
6. Rejection of Cross Objection filed by the Revenue.

Detailed Analysis:
1. The Department filed an application for restoration of appeal, which was deemed more as Rectification of Mistake. The Tribunal rejected the assessee's request for adjournment and proceeded with the case.
2. The Revenue's grievance was that the Tribunal did not consider the Cross Objection filed by them in the appeal of M/s. Essar Steel Ltd. The Tribunal noted the absence of mention of the Cross Objection in the previous order and decided to dispose of the Cross Objection filed by the Revenue.
3. The original adjudicating authority and Commissioner (Appeals) had rejected the appellant's claim for a duty refund. The Tribunal clarified that there was no part of the order against the Revenue, indicating no need for a Cross Objection. However, to be fair, the Cross Objection was treated as a written submission.
4. The issue revolved around the application of unjust enrichment provisions before the amendment of Section 18 of the Customs Act. The Tribunal referred to various judgments, including decisions by the Mumbai High Court, the Supreme Court, the Larger Bench of the Tribunal, and the Gujarat High Court to rule in favor of the appellant.
5. The Tribunal considered judgments from different High Courts and the Supreme Court to interpret the application of unjust enrichment provisions. By following the Gujarat High Court's judgment and the Tribunal's decision in a previous case, the appeal by M/s. Essar Ltd. was allowed.
6. The Tribunal found the Revenue's reliance on certain judgments inappropriate and clarified that those judgments did not address the specific issue at hand. Consequently, the Cross Objection filed by the Revenue, treated as written submissions, was rejected, and the miscellaneous application was disposed of accordingly.