TMI Blog2014 (5) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... enge which was finally resolved by the Commissioner (Appeals) vide order dated 9-1-2007 whereby he finally upheld the case in favour of the appellant, which has not been challenged by the department. Under these circumstances, refund of pre-deposit cannot be held to be time bar. There is no other ground for rejecting the refund of pre-deposit. Therefore, we find that the same is sanctionable, so far as unjust enrichment is concerned. The period involved is prior to 2006 - Decided in favour of assessee. - C/344-366, 368-392, 393-396 & 401/2011-MUM - Final Order Nos. A/573-625/2013-WZB/C-I(CSTB) - Dated:- 20-3-2013 - S/Shri Ashok Jindal, Member (J) and S.K. Gaule, Member (T) Shri Anil Balani, Advocate, for the Appellant. Shri M.S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22-4-2008, the Additional Commissioner of Customs, ordered for reconstruction of bills of entry and in May, 2008 the bills of entry were reconstructed and in October, 2008 the application for refund of RD were taken on record. 3.1 However, the lower adjudicating authority rejected the refund claim vide order dated 25-10-2010 on the ground of time bar and on the doctrine of unjust enrichment. Aggrieved by the same, they filed appeal before the Commissioner (Appeals), who in turn dismissed the appeal filed by the appellant on the ground of time bar and unjust enrichment. Hence the appeals. 4. Shri Anil Balani, advocate appeared for the appellant. The contention of the appellant is that the Order-in-Original dated 30-3-1996 finalising t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per Section 18 of the Customs Act, 1962 at the material time, the appellant were entitled for refund of deposit on finalisation of assessment. The contention is that department should have suo motu returned the deposit to the appellant immediately after the O-I-A dated 9-1-2007 without waiting for the appellant to file the refund application. In support of their contention they placed reliance in Hindustan Lever Ltd. - 2011 (274) E.L.T. 146. 5. The ld. AR appeared for the appellant reiterates the finding of the Commissioner (Appeals). 6. We have carefully considered the submission and perused the record. The refund has been rejected on the ground of (1) Time bar and (2) doctrine of unjust enrichment. Before proceeding to decide the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. We also find that as held by the Hon ble Apex Court in the case of Oswai Agro Mills, cited (supra), the provisions of Section 11B is not attracted when refund arises due to encashment of bank guarantee. 11. In the light of the Hon ble Supreme Court s judicial pronouncements, we are of the view that the assessee was entitled to refund on the basis of simple letter rather than following the detailed procedure prescribed under Section 11B of the Central Excise Act, 1944. Accordingly, we allow the appeal filed by the party with consequential relief, if any. 7. In these circumstances, we set aside the ld. Commissioner (Appeals) and allow the appeals with consequential relief, if any as per law. (Operative part pronounced in Court) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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