TaxTMI 
TaxTMI 
2016 (5) TMI 439
X X X X Extracts X X X X
X X X X Extracts X X X X
....sons were recorded and samples were drawn and got tested. Based upon the same, proceedings were initiated against the appellant by way of issuance of show cause notice. 3. It is seen that in the meanwhile, the importers through its Association M/s. Petroleum Products Parallel Marketers Association addressed correspondence to the appellants stating that bills of entries filed by all the importers have to be cancelled by submission of the required letter to Customs, Mangalore inasmuch as the importers are disowning the cargo. The appellant was also informed by the importers that any liability arising out of the import will be paid by the appellants. Accordingly all the importers abandoned the cargo. 4. Proceedings initiated by the department by way of various show cause notices resulted in passing of an order by the Commissioner being orders-in-original No. 3/2003 to 13/2003, dated 7-10-2003 holding that the cargo was liable to confiscation as the same was ATF and not SKO. He further observed that inasmuch as the importers have refused to take delivery of the goods on the ground that the product did not match the specifications of SKO and have not paid to the exporter....
X X X X Extracts X X X X
X X X X Extracts X X X X
....etters issued by the said importers cannot be held to be in accordance with law. Accordingly, notice proposed to reject the refund claims. 8. The said notice was adjudicated by the Commissioner vide his present impugned order by referring to the provisions of Section 27(1) of the Customs Act, 1962. He held that inasmuch as the fines and penalties were deposited by the importers in whose name TR-6 Challans stand issued and in no document the name of the appellant appear, the claim of refund by the appellant is against the provisions of Section 27. He also observed that out of the total 11 parties, some of the importers have issued no objection certificate but the balance four importers have filed their objections to the refund of fine and penalty to the present appellant. He further observed that the refund has to be granted to the person who has paid the said amount and department cannot interfere in the financial transactions between the appellant and its 11 importers. Inasmuch as it is the name of the importers which is figuring in the TR-6 challans, the refund can be made only to them and not to the present appellant. He accordingly rejected the same. Hence the present a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in the amount which is not due to them. He also referred to the Hon'ble Supreme Court's decision in the case of Sahakari Khand Udyog Mandal Ltd. v. CCE [2005 (181) E.L.T. 328 (S.C.)] laying down that doctrine of unjust enrichment is based on equity. He submits that the same principle applies even in the case of the Revenue which cannot be allowed to be enriched on the technical grounds. 10. Countering the arguments of the appellant, learned AR Shri R. Gurunathan appearing for the Revenue submits that in terms of the provisions of Section 27 of the Customs Act, duty and interest, if any, paid on the goods can be claimed in a refund by any person who has paid or borne it. Duty liability is on the goods under the Customs Act and when the goods change hands between the seller and the purchaser, the duty paid by the seller on such goods will be borne by the purchaser. It is in these conditions that the title holder of such duty paid goods becomes eligible for refund subject to production of statutory prescribed documentary evidences. He submits that as against duty and interest, fine and penalty are penal in nature and are imposed to deter the potential offenders and prevent the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the case and allowed the appeal on merits and not on the issue that while allowing re-export, the redemption fine and penalties should not have been imposed upon the importers. 13. When the said appeals of the importer were allowed by the Tribunal on merits of the case, as a consequence, the importers became entitled to the refund of the redemption fine and penalty so paid by them. As such it is importers who should have filed the refund claims, inasmuch as the appellant had not filed any appeal before the Tribunal against the earlier order of the Commissioner. The claim of the exporter, i.e. the present appellant as a consequence of the Tribunal's order, on the ground that it is he who had provided the money to the importers for payment of fine and penalty cannot be appreciated inasmuch the Revenue cannot be expected to go beyond the scene and find out as to from where an assessee procured the money. Hypothetically, presuming if an assessee for payment of dues to the Revenue, takes loans from one Mr. 'A', can Mr. 'A' approach the Revenue for refund of the said deposits so paid by the assessee, on success of the assessee's appeal before the Tribunal. Admittedly, it is the....