IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION Customs Application No. 2 of 2001 The Commissioner of Customs (Import), Mumbai .. Applicant V/s. R.B. Jodhamal & Co. Ltd., Jammu .. Respondent Ms. S.V. Bharucha with Mr. H.V. Mehta for the Applicant None present for the Respondent CORAM : S. RADHAKRISHNAN & CORAM : S. RADHAKRISHNAN & CORAM : S. RADHAKRISHNAN & J.H. BHATIA, JJ. J.H. BHATIA, JJ. J.H. BHATIA, JJ. DATED : 29.06.2005. DATED : 29.06.2005. DATED : 29.06.2005. P.C.:- P.C.:- P.C.:- 1. Heard the learned counsel for the Applicant. None appears for the Respondent, though served. Affidavit of service dated 10.3.2005 is taken on record. The substantial question of law raised in the above Application reads as under:- i. Whether on the facts and in the circumstances of the case the Tribunal was right in law in deciding the issue of unjust enrichment on captive consumption by following the decision of the Hon’ble Bombay High Court in the case of Solar Pesticides 1992 (57) ELT 201 even though the Revenue was in appeal against the decision before the Hon’ble Supreme Court and which issue has finally been decided in favour of the Revenue by the Hon’ble Supreme Court 2000 (116) ELT 401 dated 4.2.2000 reversing the decision of the Hon’ble Bombay High Court? 2. The learned counsel for the Applicant pointed out that the order passed by Customs, Excise & Gold (Control) Appellate Tribunal is solely based on a judgment of our High Court in M/s. Solar Pesticides v. M/s. Solar Pesticides v. M/s. Solar Pesticides v. Union of India 1992 (57) E.L.T. 201. Union of India 1992 (57) E.L.T. 201. Union of India 1992 (57) E.L.T. 201. The learned counsel for the Applicant further pointed out that the ( 2 ) aforesaid judgment of the Bombay High Court has been overruled by Supreme Court by a judgment in Union of Union of Union of India v. M/s. Solar Pesticides 2000 (116) E.L.T. 401 India v. M/s. Solar Pesticides 2000 (116) E.L.T. 401 India v. M/s. Solar Pesticides 2000 (116) E.L.T. 401 (S.C.), (S.C.), (S.C.), and it has very clearly held that the principles of unjust enrichment applies to the case of captive consumption also, and in view thereof, the Supreme Court was pleased to hold that the view of the Bombay High Court in Solar Pesticides v. Union of Solar Pesticides v. Union of Solar Pesticides v. Union of India India India (supra) was incorrect. 3. In the aforesaid facts and circumstances, we direct the Appellate Tribunal to refer the above question of law to this Court after setting out all the statements of facts. (S. RADHAKRISHNAN, J.) (S. RADHAKRISHNAN, J.) (S. RADHAKRISHNAN, J.) (J.H. BHATIA, J.) (J.H. BHATIA, J.) (J.H. BHATIA, J.)