Delhi High Court
Sawhney Export House vs Union Of India (Uoi) And Ors. on 27 April, 2004
Author: B Patel
Bench: B Patel, B D Ahmed
JUDGMENT
B.C. Patel, C.J.
1. This case has a chequered history and ultimately for a refund, the petitioner, after failing before all the authorities, upon a direction given by this court in an earlier writ petition, approached the Deputy Commissioner of Customs. Hearing the petitioner, the Deputy Commissioner of Customs made an order which reads as under:
"In these Orders of Collector (Appeals), CEGAT and High Court of Delhi, there is no direction to adjudicate the case again. There is nothing on record to suggest that case has been adjudicated again. Hence, it appears that there is no valid Adjudication Order as on date. Hence, redemption fine of Rs.1,000/- and personal penalty of Rs.500/- which have been paid by the party have to be refunded.
As far as excess duty amount of Rs.20,032/- is concerned it is seen that as per Sections 27, 28C, 28D, the refund of duty cannot be sanctioned in favor of the party unless it is established by the party that they have not passed on the incidence of excess duty on any other person. Hon'ble Supreme Court of India in the case of M/s Solar Pesticide Pvt Ltd., [report in 2000 (116) ELT 401] held that the concept of unjust enrichment is applicable even if the goods are captively consumed as raw material. The present case being covered in the said judgment, it is held that the concept of unjust enrichment would be applicable on the excess paid duty of Rs.20,032/-. Since as per Section 28D of Custom Duty 1962 the onus of proof is on the party and because in this case no such evidence has been produced by the party, the refund of Rs. 20,032/- is ordered to be credited to the Consumer Welfare Fund. Regarding interest, there is no provision in the Customs Act, 1962 for payment of interest on Redemption Fine and Penalty. Similarly, demurrage is paid to AAI and hence no refund of demurrage can be ordered.
ORDER
The refund of Redemption Fine of Rs.1000/- and Personal Penalty of Rs.500/- are sanctioned in favor of the party. However, the refund of Rs.20,032/- is ordered to be sanctioned in favor of Consumer Welfare Fund."
2. Against this order, an appeal was preferred before the Appellate Officer, namely, Commissioner of Customs (Appeals). Being aggrieved by the first appellate order, the petitioner also preferred a second appeal before the Tribunal which also dismissed the same and against which this writ petition is filed.
3. While refund of the redemption fine and personal penalty has been made to the petitioner, the excess duty amount of Rs. 20,032/- has not been refunded to the petitioner on the ground of unjust enrichment and has been ordered to be paid to the Consumer Welfare Fund. Considering the facts and circumstances of the case and particularly, the failure on behalf of the petitioner to answer the question posed by the Deputy Commissioner of Customs, it is not possible for us to maintain the petition and the same is required to be rejected.
4. Learned counsel for the petitioner requested that he may be permitted to withdraw this petition. Permission can not be granted. Petition is disposed of as rejected.
