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2023 (6) TMI 2 - CESTAT MUMBAIRefund of pre-deposit - refund claim filed is sought to be rejected by application of the principles of unjust enrichment - HELD THAT:- It is settled principles of law that pre-deposit is excluded from the said principles as it is made against an order issued by the appellate authority under Section 35F of the central Excise Act, 1944. Tribunal has in the case of NATIONAL ORGANIC CHEMICAL INDUSTRIES LTD VERSUS COMMISSIONER OF CUSTOMS (IMPORT) MUMBAI - 400001 [2021 (6) TMI 713 - CESTAT MUMBAI] held that that In view of the specific provision of Section 129E of Customs Act, 1962, as elaborated by us, and the several decisions cited supra, the position adopted in the impugned order that the original authority was, in discarding the claim of the appellant that the payment of differential duty was pre-deposit, is not incorrect cannot be affirmed by us as legal and proper. Further, in the case of THE COMMISSIONER OF CENTRAL EXCISE, PUNE1 COMMISSIONERATE VERSUS M/S SANDVIK ASIA LTD. [2015 (10) TMI 719 - BOMBAY HIGH COURT], Hon’ble Bombay High Court has held that Tribunal was not concerned with the treatment given to the amount and as deposited in the Assessee's profit and loss account. It is immaterial and irrelevant for the Tribunal and equally for us as to what the Assessee terms this amount in his Books of Account. Even if it is shown on the 'expense side' that does not mean that the presumption that the burden has been passed to the consumer can be raised. The order seeking to deny refund of pre-deposit by applying the principles of unjust enrichment cannot be sustained - Appeal allowed.
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