The Delhi High Court observed that the direction to credit customs refund allowed to consumer welfare fund based on unjust enrichment without providing an opportunity for a hearing is invalid and remanded the matter to the competent authority.
M/S Optiemus Infracom Limited, the Petitioner challenged the impugned orders in original whereby the Principal Commissioner of Customs has though allowed the applications for refund, however, directed that the amounts be credited to the Consumer Welfare Fund applying the principle of unjust enrichment.
Senior counsel for the petitioner submitted that the order suffers from ex-facie errors apparent on the record. He submits that no opportunity for a personal hearing was granted to the petitioner and the documents filed by the petitioner with the Principal Commissioner of Customs were misread and misconstrued. He refers to para 11 of the order where for the financial year 2014-2015, under the heading customs duty refund/receivable amount shown is ‘NIL’.
The counsel submitted that the same is contradicted by the balance sheet on record of the said authority which clearly shows that a sum of Rs. 8,934.88 lakhs was shown as customs duty recoverable.
The senior counsel submitted that had the petitioner been given an opportunity for a personal hearing, the petitioner would have been able point out to the said error. He submits that there are other errors also that the orders suffer from and in case an opportunity is granted to the petitioner, the petitioner would be able to point out the discrepancies.
A division bench comprising Justice Sanjeev Sachdeva and Justice Ravinder Dudeja set aside the impugned orders to a limited extent and the matter is remitted to the competent authority for re-adjudication of the issue of alleged unjust enrichment and appropriation of the amount in the Consumer Welfare Fund in terms of Section 27 (2) of the Customs Act 1962.
Further held that “the competent authority shall grant an opportunity of personal hearing to the petitioner before passing the order, about the credit of the amount in Consumer Welfare Refund.”
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