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2014 (5) TMI 55 - CESTAT AHMEDABADApplicability of unjust enrichment principle prior to 13.07.2006 amendment - Claim of refund - Pre-deposit - Finalization of provisional assessment - Held that:- 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 - Relying upon COMMISSIONER OF CUSTOMS Versus Hindalco Industries Ltd. [2008 (9) TMI 71 - HIGH COURT GUJARAT] - Principle of unjust enrichment is not applicable in such cases prior to 13.7.2006 – Excess duty paid should be refunded without any claim made by assesse - The period involved in the dispute pertains to the period 1998-99 - 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 – Therefore, the rejection of claim of ₹ 17.50 Lakhs by the lower authority is not sustainable. Commissioner (A) has recorded that amount deposited prior to adjudication of demand case did not remain pre-deposit as the said deposit 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.
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