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TMI Blog2015 (11) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... passed at that time. The amount was, thus, recovered on encashment of the Bank Guarantee by the Department and it was on the basis of the order passed by the Court. The Court had, after vacating the stay order, only permitted the Department to encash the Bank Guarantee. - as far as refund of this amount is concerned, it had to be decided in the light of the doctrine of unjust enrichment which was clearly applicable - Decided against assessee. - Civil Appeal No. 987/2007 - - - Dated:- 23-9-2015 - Mr. A.K. Sikri And Mr. Rohinton Fali Nariman, JJ For the Petitioner : Mr. S. Vasudevan, Adv., Mr. V. Lakshmikumaran, Adv., Mr. M. P. Devanath, Adv., Ms. L. Charanaya, Adv., Ms. Nupur Maheshwari, Adv., Mr. Hemant Bajaj, Adv., Mr. R. Ramacha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a condition for utilising the machinery. As it will take some time for the applicant to install the machinery and commission it, we direct the applicant to start paying ₹ 70,00,000/- from 1st August, 1992, in four equal monthly installments. The bank guarantee, which the applicant is required to continue, will have to be reduced to the extent installments are paid by the applicant. The respondents will be at liberty to withdraw the amount that may be deposited by the applicant in this Court on condition that whenever called upon to do so; they will repay that amount within the time that may be specified by this Court. As per the aforesaid order, the appellant was required to pay a sum of ₹ 70 lakhs in four equal monthly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving that it was not a case for interference with the order of the High Court as the appellant had defaulted in the matter of payment of installments. The Bank Guarantee was, however, encashed to cover the amount up to ₹ 70 lakhs, as for encashment of the Bank Guarantee for the remaining amount, the Tribunal had granted stay which course of action was permitted by this Court as well dismissing the special leave petition of the appellant. The dispute of classification was ultimately settled by the Tribunal and as per that, a sum of ₹ 41,48,176/- became refundable to the appellant being the difference between the duty payable and the duty actually paid. This order attained finality. Thereafter, the appellant filed applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion as to whether the High Court order rejecting the refund in the sum of ₹ 23,98,178/- is valid or not. It cannot be disputed that the doctrine of unjust enrichment as incorporated by Section 27 of the Customs Act applies in all such cases. The only exception to the applicability of the aforesaid doctrine is that such amount is not paid as duty but has been paid by some interim orders in some proceedings by the Court as pre-deposit then it is not treated as duty. The endeavour of the appellant is to submit that the aforesaid amount of ₹ 23,98,178/- was also a pre-deposit and, therefore, the High Court has committed error in not directing the refund thereof. We are unable to accept the aforesaid submission. On the facts o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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