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2006 (11) TMI 503 - CESTAT, MUMBAIRefund of pre-deposit - Unjust enrichment - classification of imported consignment - HELD THAT:- We find that the Commissioner (Appeals) reliance on the Supreme Court’s decision in the case of Sahakari Khand Udyog Mandal Ltd.[2005 (3) TMI 116 - SUPREME COURT], is not appropriate inasmuch the issue before the Hon’ble Supreme Court was not as regards the refund of pre-deposit made for the purposes of hearing of the appeal. On the other hand, we find that the Hon’ble Supreme Court’s in the case of CCE, Hyderabad v. ITC Ltd.[2004 (12) TMI 90 - SUPREME COURT], by taking note of the Board’s Circular, has ordered payment of interest on refund accruing to the assessee, as a result of success of their appeal. The Tribunal has also considered the said issue in a number of matters and has held that such amounts deposited after adjudication have to be treated as deposits and not duties and would not attract the provisions of unjust enrichment. The Board’s Circular No. 275/37/2K-CX.8A has examined the issue relating to the refund of pre-deposit made during the pendency of the appeal and it was decided that since the practice in department had all along been to consider such deposits as other than the duty, such deposits should be returned in the event the appellants succeeds in appeal or the matter is remanded for fresh adjudication. As is seen from the Circular of the Board, the deposits made during the pendency of the appeal automatically become refundable to the lessee on success of their appeals, without the assessee having made any refund application. As such, deposits are basically in the nature of a condition of hearing of the pending appeal. In any case, in the present case the imports were effected during the period 1994 to 97 and the deposits were made by the appellants in the year 2000, during the pendency of the appeal before the Hon’ble Supreme Court. As such, in our view it cannot be reasonably concluded that the same would be hit by the bar of unjust enrichment. We accordingly set aside the impugned order of the Commissioner (Appeals) and restore the order of the Assistant Commissioner. The appeal is allowed in above terms.
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