TMI Blog2012 (5) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... E/47/2004-Mum - A/412/2011-WZB/C-II(EB) - Dated:- 27-5-2011 - S/Shri Rakesh Kumar, Ashok Jindal, JJ. REPRESENTED BY : Shri D.H. Nadkarni, Advocate, for the Appellant. Shri V.K. Singh, SDR, for the Respondent. [Order per : Ashok Jindal, Member (J)]. This appeal is filed against the order of rejection of their refund claim on account of limitation as well as on account of unjust enrichment as contained in Section 11B of the Central Excise Act, 1944. 2. Brief facts of the case are that the appellant are engaged in the manufacture of stranded wires of steel which are intermediate products and the same are used as inputs to manufacture the appellant s final product i.e. Auto Control Cables for motor vehicles. The final pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of differential duty while adjudicating, the show-cause notice was dropped and it was held that nothing was payable by the appellant. Moreover, it was held that the supplementary invoices issued by the appellant were void for the purpose of taking MODVAT/CENVAT credit. The said order was not challenged by either of the party and attained finality. In pursuance of the said adjudication, the appellant filed a refund claim of Rs. 9,48,509/-. While entertaining the refund claim, a show-cause notice was issued and the same was adjudicated by denial of refund claim which was confirmed by the lower appellate authority as time-barred as well as the refund claim is hit by bar of unjust enrichment. Aggrieved by the said order, the appellant are befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., Ahmedabad v. Shayona Enterprises - 2008 (230) E.L.T. 378 (Tri.-Ahmd.) and Commissioner of Central Excise, Kolkata-III v. Vegetable Products Ltd. - 2009 (247) E.L.T. 180 (Tri.-Kolkata). He also submitted that the decision in the case of Sahakari Khand Udyog Mandal Ltd. v. C.C.E. Customs - 2005 (181) E.L.T. 328 (S.C.) is not applicable to the facts of this case as in that case the claimant has already charged and collected the duty from the customers and the same was transferred to Consumer Welfare Fund which is not in this case. In alternative, he submitted that the amount in dispute although collected from their sister concern/group companies by way of supplementary invoices but the sister concern/group companies have not taken the cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 57 (Tri. - Mum.) this Tribunal has held that the burden of amount deposited whether passed on or not, amount deposited pursuant to High Court order while case is pending adjudication - doctrine of unjust enrichment is invocable. He further submitted that in the case of United Spirits Ltd. v. Commissioner of Customs (Import), Mumbai - 2009 (240) E.L.T. 513 (Bom.) the Hon ble High Court has held that wherein pursuant to provisional assessment the provisions of unjust enrichment is applicable to refund consequent upon to final assessment. Therefore, the impugned order is sustainable. The appeal filed by the appellant is required to be dismissed. 5. Heard both sides. 6. We have gone through the contentions made by both the sides before us. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that in that case the issue before the Hon ble Apex Court was of refund of duty as per Section 11B of the Central Excise Act, 1944, where the duty was paid and rebate claim of duty was filed which is not in this case. In this case the amount paid by the appellant was not appropriated as duty by the adjudicating authority. In the case of United Spirits Ltd. (supra) the issue before the Hon ble High Court was that where an amount deposited in pursuant to provisional assessment-doctrine of unjust enrichment is applicable to refund consequent upon final assessment. In that case also the amount provisionally deposited was appropriated against as duty on finalisation of the assessment which was subsequently set aside which is not in this case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not applicable. In the case of Godrej Industries Ltd. v. Commissioner of Customs, Mumbai - 2007 (213) E.L.T. 259 (Tri.-Mum) this Tribunal has held that the deposits made during pendency of the appeal automatically become refundable to assessee on success of their appeals, provisions of unjust enrichment are not applicable. We find that the abovesaid case laws supports the claim of the appellant, therefore, the provisions of Section 11B of Central Excise Act, 1944 are not applicable to the facts of this case as there is no appropriation of the amount deposited by the appellant as duty. In alternative, we have gone through the records produced by the appellant wherein it has been shown that the duty incidence has not been passed on to their ..... X X X X Extracts X X X X X X X X Extracts X X X X
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