P.C. Jain, Member (T)

1. The subject Misc. applications seek to quash order No. VIII-20/CUS/RFD/49/91/455-56, dated 30-1-1992 passed by the Assistant Collector of Customs, Div. Amritsar.

2. Facts leading to the aforesaid order are set out in that order, extracts from which are reproduced below :-

"M/s. Garg Furnace Ltd., Ludhiana imported two consignments of 100 Mts. Stainless Steel Melting Scrap vide B/E No. 405/88 dated 10-10-1988 and 425/88 dated 19-10-1988 and 89.7 Mt. of S.S. Melting scrap vide B/E No. 348/87, 349/87 both dated 24-9-1987 and B/E No. 381/87 dated 15-10-1987 through M/s. International Clearing CHA, Amritsar. Party sought the clearance of the goods at the invoice rate of Rs. 11,462 PMT and Rs. 5377 PMT respectively but the deptt. after market enquiry assessed the goods @ Rs. 14,000/- P.M.T. and Rs. 8600/- P.M.T. respectively. The party went into appeal before Collector (Appeals), Chandigarh who set aside the order of Asstt. Collector with consequential relief to the party. The party filed refund claims for Rs. 95,138/- and Rs. 97,213/- respectively. Against the order of Collector (Appeals), Deptt. filed an appeal before CEGAT alongwith stay application. The stay applications of the Deptt. were rejected by the CEGAT vide its Order No. 157/91-A, dated 24-7-91 and 148/91-A dated 18-7-1991 respectively. No review' against both the CEGAT's order were received from Hqrs. Office vide W/M C. No. VIII-(10)R/1/CUS/91 dated 3-9-1991. The party was heard in person by Asstt. Collector on 23-12-1991 and were asked to produce the evidence that the duty paid has not been passed on to any other person. The party requested adjournment for 15 days for this purpose and accordingly time upto 10-1-1992 was given to the party but vide letter dated 7-1-1992 request for another date after 26-1-1992 was made by the party. A new date 28-1-1992 was given but party did not appear for personal hearing. Hence it is clear that the party failed to produce the documentary evidence to prove that incidence of duty paid has not been passed on to any other person which is the statutory requirement as envisaged under Section 27(2) of Customs Act, 1962. Moreover, the party vide their letter dated 14-11-1991 has already admitted that Stainless Steel Melting Scrap imported was used in the manufacture of Stainless Steel ingots in their own electric furnace and the Customs duty paid was added in the cost of production of the finished goods i.e. Stainless Steel ingots whose selling price was determined in the open market...."

2.1 Learned Advocate, Shri J.S. Agarwal, for the applicants has now urged that after rejection of the department's stay application in appeal Nos. C/1668 1895/91-A by the Tribunal, the impugned order-in-appeal passed by the Collector of Central Excise (Appeals), Chandigarh attained finality and therefore, the applicants herein become entitled to the refunds flowing from the impugned order passed by the Collector of Central Excise (Appeals) in the matters of appeals pending before the Tribunal. He, therefore, submits that the order passed by the Assistant Collector dated 30-1-1992 is illegal and untenable and should be quashed.

2.2 He also points out that the reason given by the Assistant Collector in passing the said order is untenable on the ground of unjust enrichment in view of Bombay High Court's judgment in the case of Solar Pesticides Pvt. Ltd. v. U.O.I since reported in 1992 (57) E.L.T. 201. The learned advocate has produced a copy of the said judgment of the Bombay High Court. The High Court has held in para 24 of the copy supplied by the learned Advocate as follows :-

"24. The doctrine of unjust enrichment which is the genesis of the amendment, has no application in cases where the imported goods are either consumed by the importer or are used by him in the manufacture of other products. In the case of the imported product Customs duty paid on it becomes a part of the cost of manufacture of the new item or items in which