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2005 (6) TMI 106 - CESTAT, BANGALORERefund claim - extra duty deposit - Unjust enrichment - HELD THAT:- The appellants have furnished enormous evidence to show that the extra duty deposit has not been passed on to the buyers of the goods. They have explained the reason for showing the amount in the accounts of the year 2000-01 as the amount receivable and not in the year 1995. They have explained that in the year 1995, when the imports were made and they were asked to pay extra duty deposit by the Customs, they were not very sure of getting back the money from the Customs. The fact is that the money is not payable was confirmed only in 2001. This is the reason for showing the duty as receivable in the accounts of 2000-01. In our view this explanation is acceptable. Moreover, the appellants have also demonstrated that the prices before import and subsequently remain the same. In our view, sufficient evidence has been produced by the appellants to prove that they have not passed on the duty burden to their buyers. The Apex Court in the case of Mahavir Aluminium Ltd. v. Collector of Central Excise, [1999 (3) TMI 89 - SUPREME COURT] has rejected the Department's plea that refund of the amount pre-deposited for hearing of an appeal not to be released to the assessee unless it is established that he has not wrongly enriched himself by collecting duty from his customers. The High Court of Judicature at Bombay in the case of Suvidhe Ltd. v. Union of India [1996 (2) TMI 136 - BOMBAY HIGH COURT] has held that provisions of Section 11B can never be applicable to the deposit made under Section 35F. In our view, the ratio of these decisions is clearly applicable to the present case. Hence we allow the appeal with consequential relief.
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