9911796707
TMI Blog2011 (6) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3,18,976/- were paid in excess and the same were claimed by the appellants as refund by filing an application dated 17.03.2009. The sanctioning authority while issuing order in original, sanctioned the refund but transferred the same to Consumer Welfare Fund. Commissioner (Appeal), while deciding the appeal upheld the order in original. Hence the present appeal. 2. The main contention of the appellants is that the refund was claimed on re-export of ship stores, the ship from coastal run to foreign run, is deemed to be draw back of the duty under, Section 74 read with Section 88 of the Customs Act, 1962 and therefore, the principle of unjust enrichment is not applied to such refunds. The refund was for the excess duty paid by them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to others, no refund can be granted. I also find that sub-Section (5) of Section 18 of the Customs Act, 1962 provides that the amount of duty refundable after final assessment of Bill of Entry, if any, shall instead of being credited to the Fund, be paid to the claimant if incidence of of duty paid by the claimant had not been passed on to any other person. I therefore, find that doctrine of unjust enrichment is required to be examined in the present refund claim which has been arisen on account of final assessment. I further find that the statutory provisions as made in Section 27(1) read with Section 18(5) of the Customs Act, 1962, would prevail over the decisions/ order passed by any lower appellate authorities. I also find that there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia and as such I am of the view that Commissioner (Appeals) has rightly held that the doctrine of unjust enrichment will not be applicable. Revenue s appeal is, accordingly, rejected. 4. Shri Nimesh Mehta, learned advocate also invited my attention to the provisos to Section 27 of the Act, which reads as under :- Provided that the amount of [ duty and interest, if any, paid on such duty] as determined by the Assistant Commissioner of Customs or Deputy Commissioner of Customs] under the foregoing provisions of this sub- section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to- (a) the [duty and interest, if any, paid on such duty] paid by the importer, [or exporter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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