9911796707
TMI Blog2016 (8) TMI 1111X X X X Extracts X X X X X X X X Extracts X X X X ..... 15/05/2000 has held that since the show cause notice was not issued within six months as prescribed under Section 11A of the Central Excise Act and as approved by the Hon'ble Supreme Court in its order dated 17/01/1995, the Appellant succeeds on limitation and are entitled for consequential reliefs as permitted by law. 3. In the second round, the Tribunal by its order dated 26/10/2005 allowed the appeal on the ground that pre-deposit made during pendency of appeal is required to be granted on success of the appeal before the higher authority, unless the said order of the higher authority has been stayed or reversed. The Tribunal, while allowing the appeal, further observed that pendency of Reference Application before the Hon'b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia 2000 (116) ELT 401 will be of some application in the case in hand as the textile yarn which is manufactured and consumed captively, question unjust enrichment does arise. 7. I have considered the submissions made by both the sides. I find that the facts are not much in dispute. The appellant herein is seeking refund of an amount deposited by them on the direction of the higher judicial forum for hearing and disposing of the appeal filed by the appellant. The appeal filed by the appellant before the Apex Court was dismissed and a view was also taken in favour of Revenue, but the Apex Court has directed the department to recover the dues within the period of limitation as per Section 11A of the Central Excise Act, 1944. In the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Bombay vide their order dated 17/02/2005. As such, the appellants are entitled to refund of duty deposited by them during the pendency of their appeal before the Tribunal. Accordingly, we set aside the impugned order and allow the appeal." 9. The above direction of the Tribunal in the said order is not contested as submitted by the learned counsel and the learned AR is also not able to state authoritatively that department has preferred an appeal against the said order. In the absence of any evidence of an appeal against such an order, the findings and the direction of the Tribunal have attained finality. As against the said final order, it was not within the jurisdiction of the lower authority to issue a fresh show c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parameters applicable to the claim of refund of duty as the amount is deposited under Section 35F of the Central Excise Act, 1944. The Hon'ble Supreme Court vide its order dated 26-11-2001 dismissed the appeal. Even though the Apex Court did not spell out the reasons for dismissal, it can well be construed in the light of its earlier judgment in the case of Suvidhe Ltd. and Mahavir Aluminium that the law relating to refund of pre-deposit has become final. 3. In order to attain uniformity and to regulate such refunds it is clarified that refund applications under Section 11B(1) of the Central Excise Act, 1944 or under Section 27(1) of the Customs Act, 1962 need not be insisted upon. A simple letter from the person who has made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of unjust enrichment does not arise. In my considered view, both the lower authorities have erred in coming to a conclusion that the refund claim is hit by bar of unjust enrichment. Even the reliance by the learned AR as to the applicability of the unjust enrichment to captive consumption is correct in the circumstances in which it was delivered. In the case in hand, the facts are totally different, the amount was deposited by the appellant on the direction of the appellate authorities. In view of the foregoing I hold that the impugned order is unsustainable and liable to be set aside and I do so. 11. The impugned order is set aside and the appeal is allowed with consequential relief as per our final order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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