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TMI Blog2008 (5) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act, 1962. However, as in compliance with the Hon'ble Bombay High Court orders dated 25-10-1991, 30-10-1991, the said goods were allowed to be utilized by M/s. Maharashtra Distilleries Ltd. (now known as M/s. United Spirits Ltd.) on their depositing an amount of Rs. 1,56,64,500/- and the goods are not available for confiscation, he appropriated Rs. 1,05,02,087/- out of the said deposit towards differential duty on these goods, [which is also recoverable under Section 125(2) of the Customs Act, 1962] and also appropriated an amount of Rs. 51,62,413/- towards the value of the goods (which would have been leviable as redemption fine if the goods had been available for confiscation). In the matter carried over to the Tribunal, the Tribunal, vide their Order dated 15-9-2005, ordered that the appellants be refunded the amount of Rs. 1,05,02,087/- appropriated by the Revenue towards differential duty, and also refund of the amount appropriated towards redemption fine in excess of Rs. 10 lakhs i.e. Rs. 41,62,413/- in accordance with law. 3. The appellants (now known as M/s. United Spirits Ltd.) filed a refund claim dated 9-11-2005 of Rs. 1,46,64,500/-, pursuant to the above order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Allied Photographic's case, the Court did not concern themselves with a case, where the doctrine of unjust enrichment was applicable to the return of the amount deposited in lieu of the goods pursuant to the order of the High Court, while in the Parle's case, the issue was the return of duty paid during investigations, while this was a case of the goods, which were under seizure, and not the duty. (ix) The amount of Rs. 41,62,413/- though not appropriated as duty is to be returned as unjust enrichment is not attracted to the cases involving mere deposit. (x) There is no presumption under Section 28D for the amount deposited as fine in lieu of confiscation and the appellants are entitled to the return of the entire deposit with interest in compliance of the Hon'ble Bombay High Court. 6. Shri V. Sridharan, Advocate appeared for the appellants, while Shri B.K. Singh, Jt C.D.R. appeared for the Respondents. Shri V. Sridharan reiterated the submissions already made as above and vehemently stressed that deposit was not duty and as such the unjust enrichment was not attracted in view of the Hon'ble Bombay High Court decision in Suvidhe Ltd., which has been upheld by the Hon'ble Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he refund. As already stated earlier, the Courts, including the Apex Court in the case of Mafatlal (supra) and Sahakari Khand Udyog v. CCE reported in 2005 (181) E.L.T. 328 (S.C.), have repeatedly affirmed that for any refund as a consequence of an appellate order, the doctrine of unjust enrichment has to be applied before the amount is refunded to the claimant. When the said doctrine was invoked in the case of the appellants, it was found that the had not rebutted the presumption of duty haying been passed to the buyer in the instant case, particularly in view of the decision of the Hon'ble Supreme Court in the case of UOI v. Solar Pesticides reported in 2000 (116) E.L.T. 401 (S.C.). Thus the contention of the appellants, that the order of the Hon'ble High Court has not been complied with, does not appear to be correct, 11. It is true that Section 27 of the Customs Act, 1962 refers to refund of 'duty'. Legislation may be described as law made deliberately in a set form by an authority, which the Courts have accepted as competent to exercise that function. However, the part played by the judges in the struggle between the prerogative and Parliament enabled the judges to preserve i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case it cannot be said that it is a case of unjust enrichment and, therefore, the amount which is deposited by the petitioner is required to be refunded when the order of the appellate authority is set aside. On what basis the Revenue contends that this is unjust enrichment has not been placed before us. The Revenue could not point out as to the difference between the amount deposited during the appeal and amount deposited during the adjudication proceedings. As we have said earlier, the amount of duty paid under Section 3 of the Act is the duty and whatever is claimed subsequently can be said to be duty only after the order passed by the adjudicating authority is finally confirmed. Till then, it cannot be said to be amount of duty." The Hon'ble Supreme Court reversed the decision holding thereby that the doctrine will also be applicable to so called deposit or security deposit made during the process of adjudication. Recently, the Hon'ble Tribunal had an occasion to examine the issue of deposit made for the provisional release of the goods in the case of Ravi Sizers v. CC, Ahmedabad reported in 2007 (218) E.L.T. 412 (Tribunal) 2007 (82) RLT 422. It came to the conclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Apex Court in the case of Solar Pesticides (supra). 14. As already explained earlier, the directions of the Bombay High Court to deposit the amount was a condition for the release of the goods, which were seized under Section 110(1) of the Customs Act, 1962. Such amount was to be considered as a security deposit against the provisional release of the goods. Hence the decision of the Supreme Court in the case of Parle International (Supra) will be squarely applicable in this case. In any case, the doctrine of unjust enrichment is applicable in case of any refund being given to the party. This is based on the decisions of the: (a) Supreme Court in the case of Sahakari Khand Udyog v. CCE reported in 2005 (181) E.L.T. 328 (Paras 32 & 33) (b) Bombay High Court in the case of Shree Vindhya Paper Mills v. UOI reported in 2005 (187) E.L.T. 442 (Paras 28, 29 & 30) (c) Bombay High Court in the case of Bussa Overseas v. UOI reported in 2003 (158) E.L.T. 135 (d) Tribunal (L.B.) in the case of Shivaagnicov. CCE reported in 2006 (199) E.L.T. 44. The Tribunal decision in the case of JPN Impex - 2002 (143) E.L.T. 630 is not relevant as that was passed prior to the Supreme Court judg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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