Stay Order Nos. 46-47/98-B2 and Final Order Nos. 756-757/98-B2 arising from in C/Stay/476 to 477/98-B2 in Appel Nos. C/546-547/98-B2. Case: Commissioner of Customs, Cochin Vs Chirag Import & Export. Central Information Commission
| Case Number | Stay Order Nos. 46-47/98-B2 and Final Order Nos. 756-757/98-B2 arising from in C/Stay/476 to 477/98-B2 in Appel Nos. C/546-547/98-B2 |
| Counsel | For Appellant: Shri R.S. Sangia, JDR and For Respondents: Shri L.P. Asthana, Advocate. |
| Judges | Shri P.C. Jain, Member (T) and S.S. Kang, Member (J) |
| Issue | Central Excise Act, 1944 - Sections 11B, 35B |
| Citation | 1999 (111) ELT 814 (Tribunal) |
| Judgement Date | September 14, 1998 |
| Court | Central Information Commission |
Order:
P.C. Jain, Member (T), (New Delhi)
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The subject stay application has been filed by the Revenue praying for staying the operation of the impugned order passed by the Lower Appellate Authority holding that the question of unjust enrichment does not arise at this stage inasmuch as the goods are still with the respondents. It appears from the Order-in-Original that after clearance of Synthetic Waste, the respondents herein filed refund claims of Rs. 1,69,704/- in respect of Bill of Entry No. 2160, dated 24-5-1995 and for Rs. 1,09,918/- in respect of Bill of Entry No. 2358, dated 6-6-1995 on account of higher countervaling duty charged on the said goods. The refund claim was filed on the ground that the rate of countervaling duty has been decreased vis-a-vis earlier ad valorem rate w.e.f. 18-5-1995 and hence the basis for claiming the refund. The original authority had found the refunds admissible but denied the refund on the ground of unjust enrichment on the finding that the goods could be sold later on by the respondents. The original authority, however, directed for depositing the refund amount as aforesaid in the ''Consumer Welfare Fund''.
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Against the aforesaid finding of the original authority, the respondent herein filed an appeal before the lower appellate authority. The said authority have found that the question of unjust enrichment to the respondents at this stage does not arise because the goods are still lying with them and they have not sold the goods to another person. Therefore, the Order-in-Original was set aside and the refund of the aforesaid amounts has been ordered to be paid to the respondents herein.
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It is against the aforesaid order of the lower appellate authority that the Revenue has now filed 2 appeals corresponding to each Bill of Entry.
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At the outset, ld. Advocate Shri L.P. Asthana has submitted that the appeal is not maintainable. The Revenue did not challenge the finding of the original authority regarding the admissibility of refund to the respondents herein, as they did not file any appeal to the lower appellate authority. It is, therefore, submitted by Shri Asthana that the finding of the admissibility of refund by the adjudicating authority has became final. The question before the lower appellate authority was only to the extent whether the burden of duty in the present case has been passed on to the customers or not and whether the appellants (respondents herein) are entitled to the...
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