2010 (4) TMI 428

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..... not arise. Held that- Tribunal is correct.
K.L. Manjunath and B.V. Nagarathna, JJ. REPRESENTED BY: Shri Y. Hariprasad, Advocate, for the Appellant. S/Shri Rayappa for K.G. Raghavan, Advocates, for the Respondent. [Judgment per: B.V. Nagarathna, J.]. - The revenue has filed this appeal by challenging the final order No. 1238 of 2005 dated 27-7-2005 [2006 (193) E.L.T. 382 (Tri-Bang.)] passed in Appeal No. C/323/2002 dated 3-8-2005. 2. At the time of admission itself, the following substantial questions of law were framed by this court on 5-9-2006 which read as under: "1. Whether, on the facts and circumstances of the case, refund claim made by the respondent is not covered by 'unjust enrichment'? 2. Whether the respondent has dischar .....

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..... ccordingly allowed the appeal of the respondent. 7. Being aggrieved by the said order, the revenue has preferred this appeal. 8. We have heard learned counsel for the revenue and learned counsel for the respondent-assessee. 9. The main contention on behalf of the revenue is that when there is no challenge to the assessment order passed in the instant case which had attained finality, the application for refund could not have been considered and therefore the authorities could not have granted exemption with regard to payment of customs duty when the assessment order was not modified or reviewed. He further submits that when the assessee had unjust enrichment in the context of the duty which had been paid by the assessee and was subsequen .....

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..... mption was granted, then the question of the assessee having unjust enrichment or benefit does not arise at all. We find that the said reasoning of the Tribunal is correct which does not call for any: interference in this appeal. 12. It is also necessary to note that the machinery which was imported by the respondent-assessee was for installation at its factory premises to be used for the purpose of manufacture as captive consumption and not for further sale of the same, in which event, there would have been no occasion to collect the duty from its customers. When such being the case, the Tribunal was right in holding that the refund claimed was not hit by the rule of unjust enrichment. 13. The decisions relied upon by learned counsel fo .....

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