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TMI Blog2013 (9) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 lakhs as bank guarantee, as a transferee of the DEEC licence by M/s. Betul Oil & Flours Ltd. (BOFL in short). The said amount was appropriated by the department towards redemption fine and penalty vide order NO. CAO/45/2003/CAC/JC/SK dated 30-6-2003. The said decision was appealed against before this Tribunal and this Tribunal vide order No. A/166-82/07/CII/CSTB dated 12-3-2007 set aside the said order and allowed the appeal. The department did not prefer any appeal against the order of the Tribunal which became final. Consequently, the appellant became eligible for refund of Rs. 47.5 lakhs which was allowed by the adjudicating authority but credited to the Consumer Welfare Fund on the ground that the appellant allegedly did not fulfill t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their customers and therefore, they are not eligible for the refund. Accordingly he pleads for upholding the impugned order. 5. We have carefully considered the rival submissions. 5.1 Section 28D of the Customs Act deals with the presumption that incidence of duty has been passed on to the buyer and reads as follows;- "28D. Every person who has paid the duty on any goods under this Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of the goods." Thus the section talks of refund of duty. In the present case what we are concerned with are refund of pre-deposit made by the appellant which was appropriated towards fine and penalty. Thus the provisions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us, the facts are quite distinct and distinguishable. In the present case the appellant made a pre-deposit which was later on appropriated towards fine and penalty. Later on when the fine and penalty were set aside, the appellant became eligible for refund, Therefore, we are of the considered view that the ratio of the decision of the hon'ble apex court has no relevance to the facts in the present case. 5.3 The hon'ble High Court of Bombay in the case of United Spirits Ltd. held as follows:- "28. In the instant case on the Appellants partly succeeding in their appeal, on paying the fine as reduced, would have been entitled to release of the goods. The question, therefore, of adjusting the balance amount of the original fine ..... X X X X Extracts X X X X X X X X Extracts X X X X
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