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2013 (11) TMI 1217 - CESTAT NEW DELHI (LB)Unjust enrichment - Whether the amount whose refund granted by the adjudicatory authority can be hit by unjust enrichment or not – during investigation appellant deposited an amount of ₹ 18,75,000/- under protest by debit entries in the cenvat credit account - Held that:- The provisions of Section 11B would be applicable to a refund claim only if the claim is for refund of excess Central Excise duty paid - The bar of unjust enrichment is prescribed in 1st proviso to Section 11B (2) - The provisions of Section 11B and hence the principle of unjust enrichment would not be applicable to the refund claims of amounts which are not duty -like refund of excess fine or penalty or refund of pre-deposit paid under section 35 F on the direction of the Appellate authority where subsequently the assessee’s appeal is allowed - The refund is sought of the unappropriated amount left after adjusting the duty and penalty from the provisional deposit - The amount is not even duty and hence there is no question of applying the provisions of Section 11B and the principle of unjust enrichment for its refund - This amount should have been refunded without even refund application. Revenue’s contention is that the amount of excise duty is included is cost of goods in the year 2001-2002. But I find that out of the ₹ 18,75,000/-, ₹ 8,40,120/- has already been paid and adjusted by the Department without considering the cost structure of goods. Therefore is my view that bar of unjust enrichment cannot be now applied to rest of ₹ 10,34,880/- in this case. - Decided in favor of assessee.
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