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TMI Blog2009 (6) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount to the Consumer Welfare Fund, the Commissioner (Appeals) held against the appellant. Hence the present appeal. 2. Reiterating the main ground of this appeal, the learned Counsel submits that the doctrine of unjust enrichment under Section 27 of the Customs Act, 1962 is not applicable to a claim for refund of redemption fine or penalty. In this connection, he relies on the Tribunal's decision in J.P.N. Impex v. Commissioner of Customs, New Delhi - 2002 (143) E.L.T. 630 (Tri. - Del.), wherein it was held that a claim for refund of fine or penalty lay outside the purview of unjust enrichment. The learned Counsel further refers to the Hon'ble Supreme Court's judgment in Sahakari Khand Udyog Mandal Ltd. v. Commissioner of Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid in cash without the bar of unjust enrichment. It has been argued on behalf of the appellant that the doctrine of unjust enrichment is not at all applicable to a claim for refund of fine or penalty. This argument has been contested by the S.D.R. Both sides have claimed support from rival decisions of the Tribunal. In the case of J.P.N. Impex v. Commissioner of Customs, New Delhi (supra), a Division Bench of this Tribunal held that a claim for refund of fine or penalty did not attract the provisions relating to unjust enrichment. This case was distinguished by a co-ordinate Bench in the case of United Spirit Ltd. v. Commissioner of Customs (Import), Nhava Sheva (supra), wherein it was held that the doctrine of unjust enrichment was applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Sahakari Khand Udyog Mandal Ltd's case (supra) was a claim of rebate on sugar which was filed in terms of a notification issued under Rule 8(1) of the Central Excise Rules, 1944. The refund claim considered in the case of Parle International Ltd. (supra) was one for refund of a deposit made by the party during the course of adjudication proceedings. In both cases, it was argued on behalf of the claimants that the amount claimed as refund was not a duty and, therefore, the doctrine of unjust enrichment embodied in Section 11B of the Central Excise Act was not applicable. In both the cases, this plea was rejected. The reasoning of the apex court is clearly discernible from para 48 of its judgment in Sahakari Khand Udyog Mandal Ltd.'s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f unjust enrichment as embodied in Section 27 of the Customs Act. In that case, the question whether the said doctrine could be applied to a claim for refund of fine/penalty on equitable principles was not examined. 8. Where it is held that the doctrine of unjust enrichment is applicable to a claim for refund of an amount not being duty of excise or customs, it has to be examined, further, as to who should discharge the burden of proof. Where the claim is for refund of an amount of duty under Section 27 of the Customs Act or under Section 11B of the Central Excise Act, the burden of proof stands statutorily fixed on the claimant. Where the claim is for refund of fine or penalty, the burden of proof connected with the doctrine of unjust enr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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