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TMI Blog2009 (6) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... oms who had credited the amounts to the Consumer Welfare Fund on the ground of unjust enrichment. The appeals filed by the party against the Assistant Commissioner s orders did not succeed. The present appeals filed by them are directed against the orders of the lower appellate authority. 2. The learned counsel for the appellant submits that the doctrine of unjust enrichment is not applicable to a claim for refund of redemption fine or penalty. In support of this submission, counsel refers to the Tribunal s decision (Division Bench) in J.P.N. Impex v. Commissioner of Customs, New Delhi - 2002 (143) E.L.T. 630 (Tri.-Del.) wherein it was held that refund of redemption fine and penalty lay outside the purview of unjust enrichment. Counsel ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat doctrine of unjust enrichment was applicable to all cases of refund irrespective of whether the amount represented duty or otherwise. However, the learned SDR submits the burden of proof is on the claimant. In her rejoinder, the learned counsel points out that an appeal filed against the Tribunal s decision in United Spirit Ltd. (supra) has been admitted by the Hon ble High Court. In the circumstances, according to counsel, the Tribunal s decision in United Spirit Ltd. case (supra) may not have any precedent value at present. 3. 1 have given careful consideration to the submissions. Para 48 of the Hon ble Supreme Court s judgment, relied on by the SDR, is reproduced below : 48. From the above discussion, it is clear that the doctri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner to show that he had paid the amount for which the relief was sought and that he had not passed on the burden to consumers. In my considered view, the ratio of the above decision of the Apex Court is applicable to refund claims of all sorts inasmuch as the decision is based on equitable considerations in contra-distinction with statutory provisions. It must, therefore, apply to claim for refund of redemption fine or one for refund of penalty subject to equitable principles. 5. Admittedly, a redemption fine is penal in nature, and so is penalty. The law does not permit penal liability to be placed on innocent person. Therefore, it cannot be accepted as a rule that incidence of fine and penalty can be passed on by a person who was f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act. In other words, this view was taken regardless of the equitable basis of the doctrine of unjust enrichment. The Hon ble Supreme Court, in the case cited by the learned SDR, observed that the doctrine of unjust enrichment was based on equity and the same was given legislative recognition through Section 11B of the Central Excise Act and similar provisions. Undisputedly, Section 27 of the Customs Act is a similar provision. Therefore, according to the judgment of the Apex Court, it can be held that the doctrine of unjust enrichment is an equitable doctrine which was given legislative recognition through Section 27 of the Customs Act. Even in absence of statutory provisions, the doctrine must operate against a refund claim. What was hel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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