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TMI Blog2010 (11) TMI 926X X X X Extracts X X X X X X X X Extracts X X X X ..... a shipping bill for exporting 19724 pieces of ladies nighties. It was alleged by the department that the appellant have misdeclared the goods as woven fabrics. Subsequently, the appellant filed another shipping bill declaring the goods as cotton knitted ladies nighties attracting lesser rate of draw-back. The Collector adjudicated the case and confiscated the goods. However, he allowed redemption of the goods on payment of fine of ₹ 4 lakhs and penalty of Rs. one lakh under Sec. 113 read with Sec. 125 of the Customs Act vide Order-in-Original No. S/6-22/94D dated 11-11-1994. Aggrieved by the same, the appellant filed appeal with CEGAT against the impugned order. The CESTAT set aside the confiscation of the said goods and reduced the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndings of the Commissioner (Appeals). 5. I have perused the case records and considered the submissions. I find that the refund has arisen consequent to the Tribunal s order dated 12-3-2001. The lower adjudicating authority in the impugned order has found that the department has not contested the CESTAT s order, consequent to which the refund has arisen. Undisputedly, the appellant are eligible for the refund of redemption fine and penalty. The issue that remains now is whether the question of unjust enrichment would apply to refund of redemption fine and penalty. The appellant has contended that the decision in the case of Prakash Cotton Mill Pvt. Ltd. (supra) was in their favour and the Commissioner (Appeals) has wrongly applied the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of redemption fine and penalty. The Commissioner (Appeals) applying the ratio of decision of the Single Member rightly held that the presumption, by its very nature, operates against the department in this case. However, instead of taking the decision to its logical conclusion, he held that in view of the above mentioned judgment of the Hon ble CESTAT, the Order-in-Original is set aside. Thus, the Commissioner (Appeals) order is self-contradictory. 5.1 On the question of unjust enrichment in the case of fine, the Hon ble High Court of Bombay in the case of United Spirits Ltd., (supra) held as under :- We then come to the second question insofar as the fine imposed in pursuance to the confiscation. As noted, in appeal the amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fine in lieu of confiscation :- (1) Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods [or, where such owner is not known, the person from whose possession or custody such goods have been seized,] an option to pay in lieu of confiscation such fine as the said officer thinks fit : Provided that, without prejudice to the provisions of the proviso to sub-section (2) of Section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l principles and considering that the Act itself imposes restriction only on refund of duty under Section 28, it would not be possible to attract the principles of unjust enrichment insofar as the redemption fine is concerned. Therefore, the fine as reduced by the Tribunal only can be adjusted and the Appellants in terms of the order of this Court would be entitled as a matter of restitution for refund of balance amount of redemption fine along with interest at the rate of 13% per annum as ordered by this Court by its order dated 25-10-1991. The third question is answered accordingly in favour of assessee. (emphasis supplied) 6. From the above, it follows that principles of unjust enrichment would not apply to redemption fine. Simi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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