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TMI Blog2015 (5) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... on of unjust enrichment would not arise at all. - Decided against Rvenue. - Civil Appeal Nos. 1633-1638 of 2004, Civil Appeal No. 6541 of 2010, Civil Appeal No. 3410 of 2006 - - - Dated:- 8-4-2015 - A. K. Sikri And Rohinton Fali Nariman,JJ. For the Petitioner : Mr B Krishna Prasad For the Respondent : Ms Bina Gupta JUDGMENT Civil Appeal Nos. 1633-1638 of 2004 In August, 1991, respondent nos. 1 and 2 herein imported 2 and 3 containers respectively of alcohol under the description Undenatured Ethyl Alcohol' (Malt Spirit plus or minus 59.3% Vol.) from an intermediary, M/s. Ravco International Ltd., England (hereinafter referred to as 'RIL' for short). As per the Department, these imports were under invoiced at pound 1.40 per litre whereas the actual price of the said goods was pound 3.78 per litre. This led to issuance of a show cause notice dated 28.09.1992 upon the importers/respondents herein. It was alleged that the correct transaction value of the imported goods was pound 3.78 per bulk litre and that the goods were imported against invalid licenses. Accordingly, demand of customs duty was raised against respondent nos. 1 and 2. It also propo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enticity or evidentiary value of the said letter. However, apart from this letter, the respondents had also produced invoices and in these invoices price of UK pound 1.40 per bulk litre is specifically mentioned. The Collector has not taken into account or considered the import of these invoices. On the other hand, the CESTAT has remarked and rightly so, that when the invoices are produced showing the purchase price of the goods in question and authenticity of these invoices is not doubted by the Department, these will form as the primary evidence in support of the contention of the respondents that the imported goods were purchased at UK pound 1.40 per bulk litre. We thus, do not find any flaw in the reasoning of the CESTAT while deciding this issue. Insofar as the reduction of redemption fine as well as the penalty is concerned, the CESTAT has given the following reasons in doing so: - Redemption Fine In view of our finding on issue (i) that the goods are liable to confiscation as they have been imported without cover of a valid licence. We hold that levy of fine is warranted. However we note that for the first time in the case of Bussa Overseas Properties Ltd. vs. CC ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Bombay for release of the goods. In the said Writ Petition No. 3220 of 1991 filed by the appellant, interim order dated 25.10.1991 was passed which reads as under: - Rules returnable forthwith Respondents waive service. Order as per minutes. Petition disposed of accordingly adjudication proceedings to proceed. Upon the petitioner no. 1 depositing the amount of ₹ 1,56,64,500/- with the Additional Collector of Customs, Bombay the Petitioners are allowed to utilize 15664,50 bulk liters of Ethyl Alcohol which are the subject matter of the Supurthnama dated 7.10.1991. Pursuant to the aforesaid order, the appellant deposited a sum of ₹ 1,56,64,500/- and got the siezed goods released. The appellant, thereafter, moved another application in the said writ petition praying that the money deposited by it be kept with the Nationalised Bank in a Fixed Deposit. On the said application, order dated 30.10.1991 was passed. Though the aforesaid request of the appellant was rejected, but at the same time, the Court gave the direction that in the event it is ultimately held that the appellant is entitled to get back the amount deposited by it, the same shall be refunded to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order holds the appellant to be entitled to this amount or part thereof. At the same time, it is significant to note some pertinent observations made by him in the order to the effect that the amount in question was in the nature of deposit by the appellant in lieu of permission to take back the goods and to utilise those goods pending adjudication and if adjudication orders so warrants, this amount could be appropriated towards dues as adjudicated, according to law. After the order of the CESTAT holding that no additional duty was payable, the appellant made an application for refund of the amount deposited by it stating that even the importers were held not liable to pay any duty. This application was, however, rejected invoking the doctrine of 'unjust enrichment'. Challenging the order, the appellant preferred Customs Appeal No. 56 of 2008 before the High Court of Bombay. Vide the impugned judgment dated 25.06.2009 rendered by the High Court of Bombay in the aforesaid appeal, the High Court has confirmed the applicability of the doctrine of unjust enrichment insofar as the demand of duty is concerned. However, insofar as the demand of fine is concerned, the High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dhe Ltd . It is clear from the following portion of this circular: The issue relating to refund of pre-deposit made during the pendency of appeal was discussed in the Board Meeting. It was decided that since the practice in the Department had all along been to consider such deposits as other than duty, such deposits should be returned in the event the appellant succeeds in appeal or the matter is remanded for fresh adjudication. 2. It would be pertinent to mention that the Revenue had recently filed a Special Leave Petition against Mumbai High Court's order in the matter of NELCO LTD, challenging the grant of interest on delayed refund of pre-deposit as to whether: (i) the High Court is right in granting interest to the depositor since the law contained in Section 35F of the Act does in no way provide for any type of compensation in the event of an appellant finally succeeding in the appeal, and, (ii) the refunds so claimed are covered under the provsions of Section 11B of the Act and are governed by the parameters applicable to the claim of refund of duty as the amount is deposited under Section 35F of the Central Excise Act, 1944. The Hon'ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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