2015 (2) TMI 693

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....D(EP)/09-10 dated 19/1/2010. The fact of the case is that, the appellant M/s Air India Ltd filed a refund application for refund of Rs. 1,16,16,072/- towards custom duty of Rs. 99,69,119/- and interest of Rs. 16,46,953/- paid for the import of goods vide bill of entry no. 792442 dated 11/12/2006. The Dy. Commissioner of Custom, Refund Section (EP) NCH, Mumbai though sanctioned refund of Rs. 1,16,16,072/- but directed to credit the same to consumer welfare fund. Aggrieved, the appellant filed an appeal before the Commissioner of Customs (Appeals). The Ld. Commissioner (Appeals) upheld the order of the adjudicating authority. Aggrieved with the said order, the appellant is before us. 2. Shri Prashant Patankar, the ld. Counsel for the appel....

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....(S.C.)]. He further submits that the appellant has capitalized the said amount of refund under account head of fixed assets in their books of accounts on which, they admittedly claimed the depreciation, therefore it is proved that burden of duty has been passed on. It is his submission that both the ld. lower authority has rightly held that refund is hit by unjust enrichment and liable to be credited in consumer welfare fund. 4. We have carefully considered the submissions made by both the sides. 5. It is observed that the custom duty and interest thereon total Rs. 1,16,16,072/- has been paid in pursuance to the 'Less Charge Demand Notice' and appellant has succeeded in the adjudication and as consequential relief they became enti....

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.... ...........................         (d) ............................         (e) ..............................         (f) ............................ From the above provision, it is clear that the provision of unjust enrichment is undoubtedly applicable on the refund of the appellant. This position has been settled in Apex Court judgment in the case of Sahakari Khand Udyog (supra). As regard the submission of the counsel that even if the provision of unjust enrichment is applicable, the undepreciated amount of duty and corresponding interest should be refunded to the appellant on the ground that at least said amount has n....