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TMI Blog2008 (2) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... ckage was received less and only eight packages were received instead of nine packages. The matter was referred to the shipping company and the supplier and it was confirmed that one package was short shipped. Therefore, the respondents requested for re-assessment of the Bill of Entry and on re-assessment, the duty payable on the goods actually received in the consignment was assessed at Rs. 3,08,085/- resulting in excess payment of duty amounting to Rs. 1,11,161/-, which the respondents have claimed as refund. On adjudication, the Asst. Commissioner sanctioned the refund of Rs. 1,11,161/- but credited it to the Consumer Welfare Fund. On appeal by the respondents, the Commissioner (Appeals) granted the consequential relief. Hence this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cargo Unit, vs. Maruti Udyog Ltd. - 2003 (155) ELT 523 (Tri. Del) (iii) Brindavan Tex Processors Pvt. Ltd. vs. CCE, Bangalore - 2006 (196) ELT 61 (Tri. Del) 5. The short landing of one package is an admitted fact on record. Therefore, it cannot be denied that the amount pertains to the duty paid for the goods that did not exist at the relevant time. Since there cannot be a buyer for the non-existent goods, it is normal logic that the duty could also not have been passed on to a non-existent buyer. The Tribunal in the case of M/s. Godrej and Boyce Mfg. Co. Ltd. vs. Collector of Customs, Mumbai reported in 2001 (134) ELT 429 (Tri. Mumbai), in an identical situation, has observed as under:- "The claim arose because the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim has been rightly allowed by the Commissioner (Appeals). Another case law i.e. Sahkari Khand Udyog Mandal vs. CCE -2005 (181) ELT 328 (SC) relied upon by the Revenue also does not help them as it lays down the general guidelines in respect of the doctrine of unjust enrichment which in fact, have been followed in this case by the Commissioner (Appeals). The case law in the case of M/s. Godrej and Boyce Mfg. Co. Ltd. cited supra is squarely applicable to the facts of the present case and is required to be followed. The appeal filed by the Revenue lacks substance. 8. In the light of the foregoing discussions, I hold that the appeal filed by the Revenue is not maintainable and is accordingly dismissed. (Pronounce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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