1998 (1) TMI 534

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....ms duty, Auxiliary duty and Countervailing duty at the rate of 30%, 45% & 15% respectively were paid by them at the time of clearance of the said product whereas the applicable rates on the relevant time were 25%, 30% & 15%. Thus the appellant paid an excess amount of Rs. 1,66,968.45. Subsequently, they filed a refund claim for the said amount on 25-4-1992. These facts are undisputed by the Customs authorities. The said refund claim was sanctioned by the Assistant Commissioner and cheque dated 22-5-1995 was issued by the department in favour of the appellant. Subsequently, vide show cause notice dated 13-9-1995, the appellant herein was called upon to show cause as to why the refund claim of Rs. 1,66,968/- which has been erroneously refunde....

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....ed that the authorities below have relied upon Madras High Court's decision in the case of Collector of Customs v. Indo Swiss Synthetic Gem Manufacturing Co. Ltd. reported in 1996 (13) RLT 379. Drawing attention to the said decision of the Madras High Court, he urged that even the said judgment is in favour of the appellant so far as the same relates to the bar of unjust enrichment in respect of capital goods. Referring to para 30 of the said judgment, he submitted that it has been laid down in the said judgment of the Madras High Court that the question of passing on the incidence of duty paid on the capital goods used in the factory in manufacture of the final product did not arise at all. In the circumstances, he prayed for allowing ....

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....y held that where there is no direct sale of imported items to the buyers. Unjust enrichment as contained in Section 27 of the Customs Act, 1962, does not have any application. Reliance placed by the first appellate authority on the decision of the Madras High Court in the case of Indo Swiss Synthetic mentioned (supra) is not relevant inasmuch as para 30 of the said judgment excludes the capital goods from the purview of the unjust enrichment and it has been clearly laid down that unjust enrichment would not apply to the capital goods used in the manufacture of the final product. The said para is reproduced below : "It is thus crystal clear that the imported silica crucibles are captively used for the manufacture of synthetic gem, ....