TaxTMI 
TaxTMI 
2008 (11) TMI 448
X X X X Extracts X X X X
X X X X Extracts X X X X
....on payment of Customs duty and to this effect, the permission was obtained from the Commissioner of Customs (Export), Mumbai. Thereafter, on receipt of information/intelligence that M/s. L&T are trying to evade the duty by mis-declaration, the matter was taken up for investigation by the Special Intelligence and Investigation Branch (SIIB), Mumbai Customs. Meanwhile, pending investigations, M/s. L&T were asked to pay the duty on the goods intended for transshipment also. Accordingly, M/s. L&T had paid the duty on the entire goods, though under protest. 2. On completion of investigations, M/s. L&T were issued Show Cause Notice dated 21-9-2000. They were asked as to why the goods, namely 30127 metres of line pipes, valued at Rs. 27,51,0....
X X X X Extracts X X X X
X X X X Extracts X X X X
....de the Order of the Assistant Commissioner and remanded the case to him for de novo adjudication. The Assistant Commissioner, vide Order-in-Original dated 11-4-2007, once again sanctioned the refund but ordered to be credited to the Consumer Welfare Fund. 7. By the Order-in-Appeal dated 18-1-2008, the Commissioner (Appeals) set aside the Order of the Assistant Commissioner and allowed the appeal. Aggrieved against the Order-in-Appeal dated 18-1-2008, the Department has filed the present stay petition. The Revenue has also filed the Miscellaneous application No. C/1452/08 praying to adjourn the hearing till the outcome of the Departmental appeal before the Hon'ble Mumbai High Court. In the said application, it is contended that the Dep....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d 31-10-2003 and 8-4-2005 have already been complied with by the Department. Hence, the Miscellaneous Application filed by M/s. L&T is infructuous and is not maintainable and is accordingly dismissed. 9. We now take up the stay petition filed by the Department for disposal. 10. The basic issue to be determined is whether the principles of unjust enrichment are applicable to the refund claim filed by the M/s. L&T before the lower authorities and whether the stay of the operation of the order of the Commissioner (Appeals) is warranted. 11. After examining the records and hearing both sides, we find that the Asstt. Commissioner vide his Order-in-Original dated 11-4-2007 has sanctioned the refund claim but ordered the said amo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t claimed as refund seems to be passed on. 12. The Asstt. Commissioner further relied upon the decisions of the Hon'ble Supreme Court in the case of UOI v. Solar Pesticides Pvt. Ltd. reported in 2000 (116) E.L.T. 401 (S.C), Commissioner of Customs, Mumbai v. Eltech Enterprises - 1999 (112) E.L.T. 877 (Tri.) and also HCL Office Automation Ltd. v. Commissioner of Central Excise, Meerut-I - 2005 (183) E.L.T. 106 (Tri.-Del.). 13. The Commissioner (Appeals), while allowing the appeal of M/s. L&T, ordered that the refund amount is due to them inter alia on the following grounds : (i) The invoices raised by M/s. L&T show that a total duty of Rs. 6.49,26,788/- only has been charged by them in respect of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pipe in non-designated area. The C.A. certificate has mentioned that this amount is recoverable from the customs authorities and shown under the schedule G of the balance sheet, but from the extracts of the balance sheet submitted by M/s. L&T before the Commissioner (Appeals), it is found that nowhere it has been mentioned that the amount is recoverable from the customs authorities. Further, the learned SDR has brought to our attention that the journal voucher relating to the amount of Rs. 1,19,64,841/- has been created by M/s. L&T, which shows that any time by this artificial journal entry, the amount can be shown as "recoverable" and can be reduced or wiped out, which is evident from the fact that in the year 1999-2000 the amount shown as....