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TMI Blog2021 (6) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... on the Tribunal, and Commissioner (Appeals), by section 129E of Customs Act, 1962 to waive, fully or partially, deposit of the disputed amount with mandatory pre-deposit. 2. A brief narration of the background may assist in setting forth the scope of the proceedings before us. The appellant, upon import of capital goods for their chemical plant vide bills of entry no. 013298/30.06.1987 and no. 006051/16.07.1987, had been subjected to recovery proceedings for wrongful claim of concessional rate of duty and, in addition to differential duty of Rs. 82,62,000 and penalty of Rs. 10,00,000, was also required to pay fine of Rs. 40,00,000 for redemption of the goods held liable confiscation by Collector of Customs, Mumbai in order dated 2nd July 1987 against which appeal, filed on 23rd September 1987, was decided in favour of the importer by order dated 29th October 1998 upholding their claims. 3. On the filing of claim for refund of duty, fine and penalty, as consequential relief, on 24th November 1999, the latter two were sanctioned on 27th July 2001 and a notice of intention to credit Rs. 82.62,000, paid towards duty, in the Consumer Welfare Fund, as envisaged by section 27 of Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LT 522 (Guj)]. 6. It was also submitted by Learned Senior Counsel that the appellant had furnished all the details of capitalisation, their pricing systems and the exclusion of depreciation from direct cost duly certified by an independent chartered accountant as evidence of having borne the incidence of duty before the first appellate authority who chose to disregard their alternative submission on eligibility. Reliance is also placed on the decision of the Hon'ble High Court of Bombay in Commissioner of Central Excise, Pune-I v. Sandvik Asia Ltd [2015 (323) ELT 431 (Bom)]. 7. Learned Authorized Representative was vehement in contesting the submissions and, with reference to their claim that the incidence of duty had been borne by the appellant, pointed out that the balance sheet was significantly derelict in recording the disputed amount as pending refund claim. She further contended that, in accord with the observations of the Hon'ble Supreme Court in Mafatlal Industries Ltd v. Union of India [1997 (89) ELT 247 (SC)], any claim for refund within the provisions of Customs Act, 1962, when eligible for sanction, was required to be tested for 'unjust enrichment' before disbursemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant that duty paid on capital goods is outside the ambit of 'unjust enrichment', is one of such. Here we must also stipulate that, as held by the Hon'ble Supreme Court in re Mafatlal Industries Ltd, in every statutory determination of eligibility for refund, by the proper officer under section 27 of Customs Act, 1962, the test of 'unjust enrichment' should be applied with reference to the facts peculiar to each such claim. 10. That pre-deposit is to be excluded from the test of 'unjust enrichment', and for obvious reasons, is common ground as is evident from circular no. 984/8/2014-CX dated 16th September 2014 of Central Board of Excise & Customs stating categorically that this is not tantamount to payment of duty and that '5.2...... Hence, refund of pre-deposit need not be subjected to the process of refund of duty under Section 11B of the Central Excise Act, 1944 or Section 27 of the Customs Act, 1962....' The entire dispute commencing with the notice to discard the claim for concessional rate of duty on the goods imported in June/July 1987 and culminating in the endorsement of the declaration in the bills of entry by the Tribunal in October 1998 occurred before the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of goods which are not under the control of customs authorities or any penalty levied under this Act, the person desirous of appealing against such decision of order shall, pending the appeal, deposit with the proper officer the duty and interest demanded or the penalty levied: Provided that where in any particular case, the Commissioner (Appeals), or the Appellate Tribunal is of opinion that the deposit of duty and interest demanded duty or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue: xxxxx' in Customs Act, 1962. 12. There can be no two opinions that the law, as it stood then, prescribed the deposit of the disputed amount as pre-condition for submitting to the jurisdiction of the Tribunal. It is also unambiguously clear that this requirement could be whittled down only on specific direction of the Tribunal upon consideration of plea of hardship and subject to terms and conditions for safeguarding revenue. Safeguarding the interest of revenue, and, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, before filing of appeal, the Tribunal, in Commissioner of Central Excise, Nasik v. Siemens Ltd [2004 (173) ELT 41 (Tri-Mumbai)], had held that '3...... The payment therefore has been made for no protest but has been made to enable the appellant to file an appeal in Commissioner Appeal. The reliance of the ld. advocate for the application on Section 35F of the Central Excise Act stipulating the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied as a force to conclude that payments were made in the nature of deposit to enable this appeal and are not payments of duty.... When we find that the refunds are return of deposit made under Section 35 F of the Central Excise Act & are required to be returned as per the order of the Board vide F No. 275/37/2K-CX 8A, 2-1-2002, with filing of a refund application.' 15. We also take note that the Hon'ble High Court of Gujarat has, in, re Ghaziabad Ship Breakers Ltd, observed that '6. On a plain reading of Section 129E of the Act, it is apparent that the same provides that a person desirous of appealing against an order relat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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