TMI Blog2014 (5) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... stood adjusted against the duty confirmed in the demand order and deposit converted into duty, hence unjust enrichment is applicable - Finding of the Commissioner (A) is not convincing for the reason that even though the deposit made before adjudication of demand and it got appropriated against a demand of duty, if there is a contest to the said demand in form of appeal, the nature of deposit remained as a pre-deposit stood maintained - On setting aside the demand order by Tribunal, the action of appropriation of amount of deposit in duty and the whole order become non existent and such order cannot be of any help for the revenue to treat the amount deposited as a duty - Even if at one stage deposit made by the appellant is appropriated as duty but on setting aside the demand itself the appropriation also become null & void - Therefore, the doctrine of unjust enrichment to such a refund claim is not applicable - Assessees are entitled for the refund in question and impugned order is set aside – Decided in favour of assesses. - Appeal No.C/458/2010-DB - Order No. A/10832/2014 - Dated:- 11-4-2014 - MR.M.V. RAVINDRAN, J. For the Appellant : Shri H.D. Dave, Adv. For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Hon'ble Tribunal, Mumbai vide Stay Order No.C-II/2373- /WZB/2002 dated 08.08.2002 directed the appellant to deposit Rs.20 lakhs within one month from the receipt of the order. As the direction of the Hon'ble CESTAT was not complied, the appeal was dismissed vide Order No. C.II/269 and 270/WZB/2003 dated 17.02.2003. Further, the said appeal was restored in CESTAT vide Order No. M/331/WZB/2004-C.II dated 06.09.2004 as the appellant had deposited Rs.20 lakhs vide Challan No. nil dated 09.11.2009 and compliance of Stay Order was made. The Tribunal finally decided the matter vide Order No. A/38/WZB/AHD/10, M/45/WZB/AHD/10 dated 04.01. 2010 in favour of the appellant. Pursuant to the said CESTAT's order dated 04.01.2010, the appellant, vide application dated 29.01.2010, filed refund claim of Rs.43.50 lakhs. The respondent vide impugned order sanctioned the refund of Rs.43.5 lakhs but credited the same to the Consumer Welfare Fund on the ground of Unjust Enrichment. Further while deciding the miscellaneous application vide order No. M/760/WZB/ AHD/2010 dated 24.05.2010, the Hon'ble CESTAT held that the impugned order is an appealable order and proper course available to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as shown as fixed deposit in the Balance sheet and the Appellant are eligible for refund of the said amount also. However the Appellate Authority held that the Appellant are not eligible for the refund of Rs. 17.5 lakhs as the same is hit by principles of unjust enrichment and was not shown as receivable or deposit with Customs during the relevant period. 4. The Ld. Counsel appearing for the Appellant submits that the amount was deposited as pre-deposit Under Protest during the provisional release of goods at the relevant time of 1999-2000 which assessment has been finalized in favour of the Appellant by the Tribunal with no differential duty and hence the amount is only a predeposit and not a duty. He argues that in such view of facts the Section 28 of the Customs Act is not applicable and the amount should be refunded without application of principles of unjust enrichment. 5. Ld. DR appearing for the revenue reiterates the findings of the Appellate Authority. 6. I have considered the submissions made at length by both sides and perused the records and also written submission. It is undisputed that the appellant had filed bills of entries on 27.10.1998 and 01.01.199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : (f) There is no dispute that the refund claim in this case was made much prior to the addition of the proviso in sub-rule (5) of Rule 9B. On the date on which the refund claim was made, the law applicable was the law as declared by this Court in Mafatlal Industries Ltd. (supra) which we have reproduced above. However, it is contended by the learned Counsel Shri Verma for the department, that the claim of refund would be governed by the proviso introduced in sub-rule (5) of Rule 9B, and that as a consequence, the restrictions in Section 11A and Section 11B with regard to the procedure for refund would apply to the case of the appellant. The same question came for consideration of this Court in Sinkhai Synthetics Chemicals Pvt. Ltd. v. CCE, Aurangabad (2002 (143) E.L.T. 17 (S.C.). This Court took the view that the case would be governed by the rule laid down in Mafatlal Industries Ltd. (supra). This view has been reiterated in a subsequent judgment of this Court in C.A. No. 2533 of 2001 (Commissioner of Central Excise, Meerut v. M/s. Star Paper Mills Limited) upholding the view of the Tribunal that the refund claim of the appellant before the court was justified. (g) Shri V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he lower authorities, which was against the assessee. It is not disputed that the excess amount paid by the assessee consequent to finalization of provisional assessment was required to be suo moto refunded prior to 1-8-1998. In the case of Hindustan Zinc Ltd. (supra) also, it has been held by the Larger Bench of the Tribunal that refund claim for the period prior to 13-7-2006 which became due on final assessment is to be made without the claim being submitted by the assessee and that the provisions of unjust enrichment are not applicable. Decision of the Tribunal in the case of Tulsidas Ramjibhai (supra) was also to the same effect. The decision of the Hon ble High Court of Gujarat in the case of Handalco Industries Ltd. (supra) also supports the view taken by the Commissioner (Appeals). 8. I am in agreement with the above views of the Tribunal. In the present case the period involved in the dispute pertains to the period 199899. As the disputed period is prior to amendment of section 18 i.e. before 14.07.2006 and the assessment being provisional, the provisions of unjust enrichment are not applicable. I am thus of the view that the rejection of claim of Rs. 17.50 Lakhs by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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