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TMI Blog2024 (6) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... l before Commissioner (Appeals) stating that the refund should have been examined on the ground of unjust enrichment. This appeal has been dismissed by the impugned order of Commissioner Appeals). Revenue has filed the present appeal on the same grounds. 3.1 We have heard Shri Manish Raj, Authorised Representative for the revenue and Shri Vipin Kumar Gupta, Advocate for the respondent. 4.1 We have considered the impugned orders along with the submissions made in appeal and during the course of argument. 4.2 In his order, Original Authority has recorded as follows:- Sl. No. Conditions as per Not. No. 102/2007-Cus dated 14-9-07 Whether fulfillment by the party or not? Y/N 1. Whether the claim has been filed within the maximum prescribed time of one year? Yes. The party has filed claims on 06.10.2017 i.e. within one year from the date of payment of customs duty as mentioned in table above. 2. Whether the claim has been filed for duties only in respect of quantity sold (unsold stock would not be eligible for refund)? Yes, the refund claim is filed in respect of sold quantity of 13900 Kgs of imported goods. 3. Whether all duties, including Additional Duty of Customs has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment sale, whether the importer has submitted a copy of consignment sale agreement and whether the invoices issued by the consignment agent/ stockist indicated that the sale is made on behalf of importer. Yes. Consignment sale agreement dt 26.04.2010, 22.08.2014 submitted. 13. In case of Consignment sale, whether applicant has submitted a certificate from Auditor/ CA appointed by the importer to the effect that appropriate VAT has been paid by the Consignment Agent/ Stockist on behalf of the importer and importer has reimbursed the VAT to the consignment agent along with the correlation of VAT on imported goods Yes. Certificate dated 17.09.2017 from Auditor/ CA submitted mentioning therein that appropriate VAT has been paid by the Consignment Agent and VAT has been reimbursed to the Consignment Agent/ Stockist by the importer. Correlation Chart has also been submitted 4.3 From perusal of the said table it is quite evident that while claiming the special duty levied in lieu of the sale tax, invoices and VAT Challan duly supported by the CA Certificate were produced before the original authority. Original Authority in response to question no.9 specifically recorded that certific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstantial question of law" which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become "third trial on facts" or "one more dice in the gamble". The effect of the amendment mainly, according to the amended section, was: (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question; (iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; (iv) Another part of the section is that the appeal shall be heard only on that question." Gurdev Kaur (supra) was referred to and relied upon in Randhir Kaur v. Prithvi Pal Singh & Ors. [(2019) 17 SCC 71] 13.3 In Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179] a Bench of three Judges, held as under in regard to what constitutes a substantial question of law:- a) Not previously settled by law of land or a binding precedent. b) Material bearing on the decision of case; and c) New point raised for the first time before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son therefor and without giving a reasonable opportunity of hearing to the respondents. [See Nune Prasad v. Nune Ramakrishna [(2008) 8 SCC 258 : (2008) 10 Scale 523]; Panchugopal Barua v. Umesh Chandra Goswami [(1997) 4 SCC 713] (SCC paras 8 and 9); and Kshitish Chandra Purkait v. Santosh Kumar Purkait [(1997) 5 SCC 438] (SCC paras 10 and 12)]. 16 ..... 16.5 Interference on findings of fact permitted in exceptional cases, i.e., when finding is based on either inadmissible or, no evidence. This Court in Dinesh Kumar v. Yusuf Ali [(2010) 12 SCC 740] referring to various other cases held:- a) It is not permissible for High Court to re-appreciate evidence as if it was the first appellate court unless findings were perverse. b) Finding of fact can be interfered in exceptional circumstances as rarity, rather than a regularity. c) Scrutiny of evidence in second appeal is not prohibited but has to be exercised upon proper circumspection. 17. Jurisdiction under second appeal not to be exercised merely because an alternate view is possible. It was observed in Hamida v. Mohd. Khalil [(2001) 5 SCC 30] "7. ...The High Court, it is well settled, while exercising jurisdiction unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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