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TMI Blog2016 (9) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the case is that the appellant Shri. Lorenzo Bestonso imported one branded Car, Ferrari 599-GTB and cleared vide Bill of Entry No. 781548 dated 9/4/2008 vide Sr. No. 344(2) of the Notification No. 21/2012 dated 1/3/2002 and cleared on payment of duty on 15/4/2008. The said vehicle then sold to Shri. Sanjay Sunil Dutt on 17/5/2008. DRI on investigation found that car is old hence Notification benefit of Sr. No. 344(2) of the Notification No. 21/2002 dated 1/3/2002 was wrongly availed by the appellant. The car was then seized from Shri. Sanjay Sunil Dutt, the legal owner of the car. Shri. Sanjay Sunil Dutt voluntarily deposited the duty of Rs. 52,25,502/- towards Customs Duty and Rs. 11,78,101/- towards interest (Total Rs. 64,03,603/-). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the Adjudicating authority, the appellant filed the appeal before the Commissioner (Appeals) which came to be rejected vide the impugned order, therefore appellant is before us. 3. Shri. P.A. Augustian, Ld. Counsel for the appellant submits that the Tribunal in the order dated 9/9/2014 has clearly directed to the Commissioner of Customs, Nhava Sheva to refund the amount of pre-deposit made by the appellant within the period of 15 days from today along with interest in accordance with law. In view of this direction, department could not have credited the amount in consumer welfare fund. He further submits that the amount for which the refund is sought for is pre-deposit and provision of unjust enrichment is not applicable on the refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exclusion from the unjust enrichment provision, he submits that the car was admittedly imported by the appellant as an individual but immediately on import it was sold to one Shri. Sanjay Sunil Dutt therefore the condition for personal use is not fulfilled therefore unjust enrichment is not applicable in the present case. Regarding the submission of Ld. Counsel that the refund is of pre-deposit hence unjust enrichment is applicable is not acceptable for the reason that Hon'ble Supreme Court in the case of Sahakari Khand Udyog Mandal Ltd. Versus Commissioner of C. Ex. & Cus.[ 2005 (181) E.L.T. 328 (S.C.)] held that all the refund claim should be subject to Section 11B which pari materia to Section 27 of the Customs Act therefore even in cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing a relief of refund, it is necessary for the petitioner/appellant to show that he has paid the amount for which relief is sought, he has not passed on the burden on consumers and if such relief is not granted, he would suffer loss. It is also observed that in the present case appellant has paid duty, due to dispute in applicability of the notification therefore it cannot be said that pre-deposit is not duty therefore unjust enrichment is not applicable. Once the amount was paid as duty irrespective whether it was payable or otherwise, refund of the same has to compulsorily undergo the test of unjust enrichment as provided under Section 27 of Customs Act, 1962. We are therefore of the view that in the present case refund is required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provision of unjust enrichment is clearly applicable and the lower authority has rightly credited the sanctioned refund claim into consumer welfare fund. As regard the contention of the Ld. Counsel that in the Tribunal order dated 9/9/2014 this Tribunal has directed the departmental authority to grant refund therefore at this stage the issue of unjust enrichment could not have been raised, we are of the view that this Tribunal directed the departmental authority to grant refund alongwith interest in accordance with law, therefore the issue of unjust enrichment could not have been avoided by the adjudicating authority. It is applicable in the facts of the present case therefore, we do not find any error in applying the provision of unjus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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