TaxTMI 
TaxTMI 
2011 (9) TMI 782
X X X X Extracts X X X X
X X X X Extracts X X X X
....he redemption fine from Rs. 1,50,000/- to Rs. 60,000/- and penalty from Rs. 50,000/- to Rs. 30,000/- imposed in the Order-in-Original. The lower adjudicating authority rejected the refund claim on the ground of unjust enrichment crediting the same to the consumer welfare fund. 2. In the appeal preferred by the appellants it was contended that the penalty and redemption fine was paid at the time of releasing the goods to avoid demurrages and challenge the Order-in-Original imposing fine and penalty which was reduced by the Commissioner (Appeals) in his order. They, therefore, are entitled for refund of the differential amount. Moreover, Section 27 of the Customs Act, 1962 covers only duty not penalty and redemption fine making the prov....
X X X X Extracts X X X X
X X X X Extracts X X X X
....follows : "The amount deposited by the assessee consequent to the orders passed by the Adjudicating Authority cannot be considered as an acceptance or finality of the order, if an assessee has filed an appeal against the order, which is in the case in hand. The amount deposited by the assessee to exercise his right of appeal is as per the statutory requirement, and in this case appellant has paid the amount of redemption fine and penalty as ordered by Adjudicating Authority, "under protest"." 5. The Bench also observed that it is seen that CBEC, vide Circular dated 2-1-2002 has given similar instructions to field formations. Revenue today cannot argue against their own circular, though the point put forth is that the CBEC's Circular ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....arh v. Modi Oil & General Mills reported in 2007 (01) LCX 0041 = 2007 (210) E.L.T. 342 (P & H) has held that the incidence of duty has been passed on to the buyer is necessarily a question of fact; that the incidence of duty could not be transferred to the buyer after the date of clearance as the duty has been paid on a subsequent date and no question of law warranting admission of this matter would arise and the application filed by the Revenue is dismissed. 7. I do not also agree with the finding of the Commissioner (Appeals) that Rs. 2 lakhs paid by the appellant has been already accounted as expense in the financial year 2008-09 and the refund amount of fine and penalty to be accounted as receivables in the next financial year 200....