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TMI Blog2004 (6) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... rom warehouse without payment of duty and sold to buyers in the local market; that a case of evasion of customs duty was booked against the appellant-firm by the department and the same was investigated; that, during the course of investigations (September - November 97), the appellants deposited certain amounts towards customs duty; that, in adjudication of the show cause notice issued to the firm and its partner, the Commissioner of Customs by order dated 10-3-98 appropriated the said deposits towards demand of duty on the goods and imposed penalties on the firm and its partner; that the Commissioner s order was challenged in appeals preferred to this Tribunal; that the Tribunal by Order Nos. A/963-966/99, dated 27-10-99 [2000 (116) E.L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This finding of the adjudicating authority was never challenged by the department and the same stood final and binding on the Revenue. It was not open to the first appellate authority to reopen the issue in the appeal filed by the party. We, therefore, set aside the finding recorded by the Commissioner (Appeals) on the above issue. The original authority s finding on the issue will stand. 4. Issue No. (ii) : Both the lower authorities held, with reference to the provisions of Section 27 of the Customs Act, that Shri Chetan Kothari was not competent to file the refund claim on behalf of M/s. Seaking Marine Services. The reasons for this view, as stated in their orders, are that Shri Chetan Kothari was neither an employee of, nor in any oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whose signature, however, looks like that of Shri Bhavesh Gandhi s and does not appear to be forged. We have also come across a copy of a notarised affidavit dated 30-7-2001 of Shri Bhavesh Gandhi, wherein the deponent has declared inter alia that he had signed the authority letter dated 8-11-2000 authorizing Shri Chetan Kothari to file the refund claim. Obviously, this affidavit was not before the original authority when it passed its order dated 5-7-2001. The lower appellate authority s order also contains no mention of, or reference to, the affidavit. Even the memorandum of appeal before us does not refer to the affidavit dated 30-7-2001, though it refers to two other affidavits. One of these two affidavits referred to in the appeal mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horizing Shri Chetan Kothari to file the refund claim, no evidence thereof was placed on record. No such evidence has been adduced by the appellants before us, either. The authority letter dated 8-11-2000 claimed that Shri Chetan Kothari was an officer of the firm. Shri Kothari s own statement under Section 108 of the Customs Act, however, was categorical enough to disprove the claim. In the aforesaid circumstances, we see no reason to find fault with the lower authorities view that the refund claim was not filed by any duly authorized person. Our decision on issue No. (ii) goes against the appellants. 6. Issue No. (iii) : Both sides have argued exhaustively on this issue. Learned Counsel has argued that, as the amount was paid after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court s decision in Union of India v. Jain Spinners Ltd. [1992 (61) E.L.T. 321 (S.C.)]. Ld. SDR has also relied on the Supreme Court s judgment in Mafatlal Industries Ltd. v. U.O.I. [1997 (89) E.L.T. 247 (S.C.)] and the Bombay High Court s decision in Bussa Overseas and Properties Pvt. Ltd. v. U.O.I. [2003 (158) E.L.T. 135 (Bom.)], to argue that all claims of refund of duty should pass the test of unjust enrichment. 7. We have already held that Shri Chetan Kothari was not competent to claim refund of the duty paid by the appellant-firm. It would follow that he was not competent to rebut the presumption of unjust enrichment against the firm either. In our view, therefore, the presumption stood unrebutted in this case. The case law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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