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TMI Blog2011 (3) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... could not be passed on to the customer. Since the amount in question did not belong to the consumer the said amount could not be directed to be credited to the Consumer Welfare Fund - The impugned order quashed and set aside to the extent it holds that the refund amount of Rs. 1,10,55,000/- be credited to the Consumer Welfare Fund - The respondents are directed to refund the entire amount of Rs. 1,30,55,000/- to the petitioner No. 1 with interest @ 6% p.a. from the date of deposit till payment. - 1982 of 2010 - - - Dated:- 23-3-2011 - J.P. Devadhar and Roshan Dalvi, JJ. REPRESENTED BY : Shri D.B. Shroff, Sr. Counsel, i/b. R.K. Sheth Co., for the Petitioner. Shri R. Ashokan, Counsel, for the Respondent. [Order per : J.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21,13,482/- being the duty payable on the imports made under the advance licences by the license holders, should not be recovered from the petitioners. Prior to the issuance of the show cause notice, the Managing Director of the Petitioner No. 1 was arrested and was made to pay various amounts in all amounting to Rs. 1,30,55,000/- to secure the duty demand that may be raised on completion of investigation. 5. During the pendency of the said show cause notice, the Central Government of India, in the 1998-1999 Budget, introduced a scheme known as Kar Vivad Samadhan Scheme (for short KVSS) under which the disputed tax arrears could be settled by paying 50% of the tax arrears. With a view to avail the benefit of the scheme, the petitioners ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inted that there was no question of any unjust enrichment. However vide impugned show cause noticed dated 18th August 2010 the respondent No. 2 called upon the petitioners to show cause as to why the refund claimed should not be rejected. During the pendency of the writ petition vide order-in-original dated 24th January 2011 the Assistant Commissioner of Customs sanctioned refund of Rs. 1,30,55,000/-, but directed that out of the said amount, Rs. 20,00,000/- be paid to the petitioners and the balance amount of Rs. 1,10,55,000/- be credited to the Consumer Welfare Fund of India. The writ petition was filed to challenge the show cause notice dated 18th August 2010 and by amendment the order in original dated 24th January 2011 has also been ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Apex Court in the case of Sahakari Khand Udyog Mandal Ltd. v. Commissioner of Central Excise reported in 2005 (181) E.L.T. 328 (S.C.), Mr. Ashokan submitted that the doctrine of unjust enrichment , can be invoked to deny the benefit to which a person is not otherwise entitled to. 11. In the present case it is not in dispute that the amount of Rs. 1,30,55,000/- was recovered as deposit towards the liability that may arise from the advance licences obtained by the predecessor of the petitioner No. 1 company. Since the Managing Director of the predecessor company who was also the proprietor of M/s. Naraindas Dayaram, a sum of Rs. 1,10,55,000/- was paid from the proprietory concern. However, it is not in dispute that the challans show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as also M/s. Naraindas Dayaram. The amount claimed in the show cause notice has been settled and paid under KVSS. Thus the amount of Rs. 1,30,55,000/- deposited during investigation became refundable. Accordingly refund has been sanctioned, but Rs. 1,10,55,000/- has been directed to be credited to the Consumer Welfare Fund, not because the said amount is recovered from the customers but because the said amount is not shown in the books of the petitioner No. 1 as recoverable from customer. Such a course was unwarranted, because, in the present case, it is not in dispute that the amount was deposited for and on behalf of the petitioners, it is not in dispute that the said amount is refundable and it is also not in dispute that the said depos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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