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TMI Blog2012 (9) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner (Appeals). 2. The short issue to be decided is whether the doctrine of unjust enrichment is applicable in this case where fine and penalty has been reduced which have been paid by the appellant in pursuance of the earlier order. The fact of payment of redemption fine and penalty as per the earlier order is not under dispute. The contention of the appellant was that the amount claimed as refund represents redemption fine as payable in terms of Section 125 of the Customs Act, 1962 and the penalty imposed under Section 112 of the Act. Therefore what has been claimed as refund is neither duty nor tax which can be passed on to the consumer. Consequently the principle of unjust enrichment will not arise in their case. They submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case laws quoted by the appellants as well as the Revenue I am of the considered opinion that if it is not substantiated that the appellant has not passed on the burden of duty, penalty and fine they should get the benefit by way of refund. The question of unjust enrichment in such cases should not arise. My view as stated emanates from the oft quoted judgments of the Hon'ble Supreme Court in the case of Sahkari Khand Udyog Mandal Ltd. v. C.C.E. & Cus. [2005 (181) E.L.T. 328 (S.C.)] has held as under : "From the above discussion, it is clear that the doctrine of 'unjust enrichment' is based on equity and has been accepted and applied in several cases. In our opinion, therefore, irrespective of applicability of Section 11B of the Act, the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is for refund offline or penalty, the burden of proof connected with the doctrine of unjust enrichment has to be discharged on equitable principles. A duty is an indirect tax and therefore its burden can possibly be passed on to others. This is the reason why the statutes have raised the presumption in favour of the Revenue thereby making it obligatory for the claimant to discharge the liability of showing that the burden of duty has not been passed on. Fine and penalty stand on a different footing. Both are penal in nature. The law does not permit transfer of penal liability by a person who has been found to have committed an offence, to another person who has not. In other words, a penal liability is not transferable. Neither the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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