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TMI Blog2011 (6) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... Per : Dr. P. Babu; The facts of the case, in brief, are that M/s. United Shippers Limited, Mumbai are shipping agents and have filed a bill of entry No. F-1 dated 17.03.2009 for payment of duty of ship s bunker stores and coastal conversion of the ship MV Jag Vikas . The duty was assessed on provisional basis and Rs. 18,28,849/- was paid by them towards the duty liability. On finalisation, it was found that Rs. 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 orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in original states as under :- I find that Hon'ble Mumbai High Court in the case of M/s. Busa Overseas Properties Pvt. Limited reported in 2003 (158) ELT 135 (Bom) wherein the Hon'ble High Court has held that all claims of refund under the Customs Act, 1962 must poas the test of unjust enrichment contained in Section 27 ibid and unless it is established that the duty element has not been passed on 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly assessed, at the time of conversion of vessel from coastal run to foreign run, the same was found to be less than the duty deposited by the respondent. The initial deposit of duty was on estimation basis and as such has been rightly held by the Commissioner (Appeals) to be a deposit. The same was a notional amount and the quantity for which the duty was paid was not consumed entirely in India 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 [ d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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