9911796707
TMI Blog2005 (8) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... 10105.40 MT = 9946.26 LT as per Clause 3 of MOA price was US $ 147/LT of net LDT 9946.26 LT and total purchase price was US $ 1462100.22. 3. Thereafter, an addendum No. 1 dated 19-9-2002 to MOA, dated 3-9-2002 was issued and following items were included in the purchase price : (i) One spare propeller, material nickalium. (ii) One spare Tail End shaft. (iii) One emergency Generator. (iv) One spare anchor. 4. The said MOA and addendum was produced by the shipping agent prior to arrival of vessel. Vessel arrived on 28-9-2002 and was boarded on 30-9-2002. The Surveyor had confirmed the LDT of vessel - 10105.40 MT. and also confirmed the presence of Spare Propeller/Anchor and Tail End Shaft. However, on scrutiny of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03 with attested copies of the Order-in-Appeal and the TR-6 Challan, evidencing payment of the duty. In response, the importers were asked to file their claim of refund in proper format as envisaged in the Customs Refund Application (Form) Regulation, 1995 vide letter dated 10-12-2003 and 6-1-2004. In their letter dated 26-12-2003 and 19-1-2004, the importers contended that the prescribed format for refund claim is not required as their claim is for the amount, which can be treated as pre-deposit under Section 129E of the Customs Act, 1962, by citing several decision of judicial forums. None attended during the personal hearing from the side of importers fixed on 21-1-2004. 8. A Show Cause Notice was issued on 25-2-2004 as to why the refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as corresponding weight or quantity through which the duty incidence can be passed on to their ultimate buyers or consumers. The incidence of excess payment of duty, for which refund has been claimed, if passed on to the buyers/consumers directly or indirectly, the doctrine of unjust enrichment is rightly applicable. 11. As seen from the impugned order passed by the ld. Commissioner of Appeals, he has sufficiently dealt with the doctrine of unjust enrichment in para 11 of the order. Relevant portion is extracted as follows : The vessel in question was imported at a price of US$ 1,462,100.22/-having LDT 10105.40 MT. The Adjudicating Authority enhanced the value proportionately by adding Dead Weight Constant to the LDT of the vessel, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, faithful. (2) Steady in movement. (3) Long-continuing or continually recurring. (4) Invariable (5) Firm, positive, consistent - (i) That which is permanent or invariable. (ii) A quantity which retain a fixed value throughout a given discussion (iii) in the science, any characteristic of a substance, event, or phenomenon, numerically determined, that remains always the same under specified condition, as gravitation, the velocity of light, the melting or freezing point, etc. 13. The instructions issued by the Commissioner of Customs Central Excise, Rajkot in the year 1992 and the Budget instructions issued in the year 1986 were referred to the glossary terms received from the Ministry of Shipping Transport as per which Light Displa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, stores and crew. Deadweight tonnage (DWT) is the difference between light displacement tonnage and full displacement tonnage . 14. The Supreme Court of India, while rejecting the appeal filed by the Department against the above Order of the Tribunal, held that calculation of duty, ballast not to be included [2002 (143) E.L.T. (A81) (Part 1)]. 15. Thus, as seen from the above material, which is relevant for the purpose of the decision of this case, makes it clear that the observations made by the ld. Commissioner of Appeal in his impugned order in para 11, are on the ground hypothetic and does not warrant any interference of this Tribunal in the said findings. Therefore, the same is to be upheld. 16. The Revenue appeal lacks merits, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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