TMI Blog2004 (7) TMI 456X X X X Extracts X X X X X X X X Extracts X X X X ..... le of unjust enrichment. By applying this principle, the authorities below have directed the deposit of refund claim of the appellants of Rs. 4,59,974/- to the Consumer Welfare Fund. 2. The learned Counsel has contended that since the clearances were made before the issuance of Notification No. 161/90, dated 15-12-90 enhancing duty on MMF yarn from Rs. 50/- per Kg. to Rs. 63/- per Kg. per yarn, and on nylon filament yarn and polyester filament yarn from Rs. 55/- per kg. to Rs. 70/- per kg., the question of passing of incidence of duty to the ultimate customers and the applicability of principle of unjust enrichment did not arise. Therefore, the impugned order deserves to be struck down. On the other hand, the learned SDR has reiterated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Moreover, in that certificate, CA has only referred to the GP Nos. 8339 to 8360 dated 15-12-90 regarding which the additional consideration has not been received by the appellants. He has not referred to other invoices and gate passes. Similarly Shri A.P. Gupta, Manager (Excise) of the appellants in his affidavit has nowhere categorically stated averred the non-passing of the incidence of duty by the appellants to the customers. Rather he has stated in that affidavit which is dated 10-6-2003, that of the gate passes No. 8361 to 8377 (which do not find mention in the certificate of the CA referred above), the goods were sold by the Branch Depot on 15-12-90 at cum-duty paid price based on market condition as per the trade practice of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd amount had been rightly ordered to be credited to the Consumer Welfare Fund. 5. The ratio of law laid down in Silwester Textiles P. Ltd. v. Commissioner of Central Excise, Mumbai - 2003 (156) E.L.T. 216 cited by the Counsel is not attracted to the facts of the case. In that case extra duty with interest was paid subsequently and for that reason, the principle of unjust enrichment was not involved. But in the instant case, this principle is applicable to the case of the appellants. Similarly, the law laid down in Thandava Co-op. Sugars Ltd. v. CCE, Hyderabad - 2002 (145) E.L.T. 725 wherein refund of duty paid posterior to the clearances of goods during pendency of appeal under threat of recovery, was held to be not hit by the principle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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