In The Customs, Excise & Service Tax Appellate Tribunal
West Zonal Bench At Ahmedabad
Appeal No : C/26/2010
(Arising out of OIA-134/COMMR-A-/JMN/2009 dated 18/11/2009 passed by Commissioner (Appeals) of Customs, Jamnagar)
Commissioner of Customs, Jamnagar
The Shipping Corporation of India Ltd
For Appellant (s) : Shri A. Mishra, Authorised Representative
For Respondent (s): None
Dr. D. M. Misra, Hon'ble Member (Judicial)
Date of Hearing/Decision: 16.03.2017
ORDER NO. A/10631 / 2017 dated 16.03.2017
Per : Dr. D. M. Misra
None present for the Respondent. Heard the Ld. Authorised Representative for the Revenue.
2. This is an appeal filed against OIA No. 134/COMMR-A-/JMN/2009 dated 18/11/2009 passed by Commissioner (Appeals) of Customs, Jamnagar. The Revenue has come in appeal on the ground that the Ld. Commissioner (Appeals) in the impugned order has held that the principle of unjust enrichment would not be applicable to the facts of the present case. He has observed that the refund in the instant case arose on the final assessment of the Bill of entry on 31.03.2005, which was earlier provisionally assessed and the provisions for applying the principle of unjust enrichment on finalization of assessment has been incorporated under Section 27 of the Customs Act, 1962 w.e.f. 13.07.2006. In recording said observation, the Ld. Commissioner (Appeals) referred to the judgements of the Honble Gujarat High Court in the case of Commissioner of Customs Vs. M/s. Hindalco Industries Ltd. 2008 (231) ELT 36 (Guj.) and the decision of Larger Bench of this Tribunal in the case of Commissioner of Customs vs. Hindustan Zinc Ltd. [2009 (235) ELT 629 (Tri.-LB).
3. No contrary decision has been placed by the Ld. AR for the Revenue. He submits that appeal against M/s Hindalco Industries Ltd.s case has been filed before the Honble Supreme Court, however, no stay has been granted by the Apex Court.
4. I find that the issue is covered by the judgement of Honble Gujarat High Court in M/s Hindalco Industries Ltds case (supra). Moreover, I find that after filing the appeal, the Revenue has approached the Committee on Disputes (COD), as was necessary at the relevant point of time, for clearance to litigate it before this forum. However, the Committee on Disputes (COD) has not permitted the Revenue to continue with the litigation before this Tribunal. Considering all of the aforesaid circumstances, I do not find any reason to interferer with the order of the Ld. Commissioner (Appeals). Accordingly, the Revenues appeal, is dismissed.
(Dictated and pronounced in the Court)
(D. M. Misra)