9911796707
TMI Blog2024 (1) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... condoned and the application is allowed. 2. This appeal filed by the revenue under Section 130 of the Customs Act, 1962 (the Act) is directed against the order dated 03.05.2023 passed by the Customs Excise and Service Tax, Appellate Tribunal, Eastern Zonal Bench, Kolkata (tribunal) in Customs Appeal No. 75868 of 2015. The revenue has raised the following substantial questions of law for consideration:- (i) Whether the Learned Tribunal has properly appreciated the provision of Section 28D of the Customs Act, 1962? (ii) Whether the Learned Tribunal before upholding the order of the Commissioner (Appeals) is required to verify the contents of provision of Section 28D of the Customs Act, 1962? 3. We have heard Mr. K.K. Maiti, learned S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Notification No. 133 of 1987 has been fulfilled by them. The adjudicating authority rejected such contention raised by the assessee and confirmed that the demand of duty in respect of spares and accessories and denied benefit of Notification No. 133/87-Cus. The appeal filed by the assessee against the said order of adjudication was dismissed by the Commissioner Appeals. Aggrieved by the same, the assessee filed the appeal before the tribunal. The tribunal by order dated 13.09.2001 accepted the case of the assessee and in doing so relied upon the decision of the Coordinate Bench of the tribunal in the case of Boskalis Dredging India Private Limited Versus Commissioner of Customs, Bhubaneshwar dated 06.11.1997 thereby holding that the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner of Customs (Appeals) held that he does not have jurisdiction to pass any order and directed the assessee to pursue the matter before the Commissioner of Customs (Port). The Commissioner of Customs (Port) directed the matter to be considered and accordingly the adjudicating authority took up the matter and called upon the assessee to produce the documents to show that the incidence of duty has not been passed on to any other person. After hearing the assessee, by order dated 16.01.2004, the adjudicating authority sanctioned the refund under Section 27(2) of the Act but ordered the same to be credited in the Consumer Welfare Fund. Aggrieved by such order, the assessee preferred appeal before the Commissioner of Customs (Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fresh after giving an opportunity to the assessee. The Commissioner of Appeals by order dated 30.06.2015 set aside the order passed by the Assistant Commissioner crediting the refund to the Consumer Welfare Fund and directed the refund to be paid to the assessee in full. Aggrieved by such order, the revenue preferred appeal before the tribunal which was dismissed by the impugned order. 8. From the above facts, it is seen that the claim for refund was sanctioned by the authority, however, the amount was credited to the Consumer Welfare Fund on the ground that the assessee has not established that the duty has not been passed on to any third person. The appellate authority while allowing the appeal filed by the assessee has elaborately consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the certificate issued by the Chartered Accountant dated 11.06.2015 wherein the Chartered Accountant again certified that all the goods brought under the cover of the three Bills of entries are still in use by the Dredging Corporation of India. The Director (Operations and Technical) of the assessee vide a letter dated 11.06.2015 certified that the vessel is in operation and has not been sold. Therefore, the appellate authority held that when the goods are still in use the question of passing the burden of duty does not arise and the question of unjust enrichment will not be applicable. 10. While on this issue, it will be beneficial to refer to the decision in the case of Commissioner of Central Excise, Chennai - I Versus Superintendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions and the said finding has been affirmed by the tribunal. Thus, the only issue which was left open for adjudication was whether there was an unjust enrichment. As noted above, the matter has been dragged on from the year 1991 onwards when the goods were imported and till now the department does not propose to allow the matter to attain finality. The learned tribunal after taking note of the factual position has conclusively held that the bar of unjust enrichment would not apply as the vessel in question is still in use and has not been sold or disposed of. Furthermore, the certificate issued by the Chartered Accountant was also taken note of which was not shown to be factually incorrect by the department. 13. The learned advocate for t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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