TMI Blog2016 (8) TMI 1111X X X X Extracts X X X X X X X X Extracts X X X X ..... he refund claim is hit by bar of unjust enrichment. Even the reliance by the Revenue as to the applicability of the unjust enrichment to captive consumption is correct in the circumstances in which it was delivered but in the present case, the facts are totally different, the amount was deposited by the appellant on the direction of the appellate authorities. Therefore, the impugned order is unsustainable and liable to be set aside. - Decided in favour of appellant with consequential relief - E/1333/2009 - A/89067/16/SMB - Dated:- 21-7-2016 - Shri M V Ravindran, Member (Judicial) Shri Prakash Shah, Advocate for the appellant Shri H.M. Dixit, Asstt. Commissioner (AR) for the respondent ORDER This appeal is directed agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mits that the impugned order of the first appellate authority and order of the adjudicating authority is incorrect inasmuch that by order No. A/1441/WZB/2005/CII/EB dated 26/10/2005 the Division Bench of this Tribunal has categorically directed to grant the refund to the appellant. He would draw my attention to the findings recorded by the lower authorities and also the show cause notice and submits that the lower authorities had erred in issuing the show cause notice and adjudicating it. 6. Learned Departmental Representative would submit that in the case of refund either regular one or arising out of the pre-deposit by an assessee, the question of unjust enrichment would arise. He would submit that in the case in hand, the adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10/2005 has categorically recorded as under: 2. After hearing both sides, we find it is settled law that refund of pre-deposit made during the pendency of appeal before the Tribunal is required to be granted on success of the appeal before the higher appellate authorities. Reference in this connection is made to Larger Bench s decision of the Tribunal in the case of Sheela Foam Pvt. Ltd. Vs. Commissioner of Central Excise, Noida, reported in 2003 (151) ELT 522 (Tri-LB). The Board s Circular No. 275/37/2K-CX.8A dated 02/01/2002 has held that such refund should be granted. The Board s Circular is binding upon the authorities. As such, the authorities below were bound to grand the refund irrespective of the facts that the reference app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-deposit made during the pendency of appeal was discussed in the Board Meeting. It was decided that since the practice in the Department had all along been to consider such deposits as other than duty, such deposits should be returned in the event the appellant succeeds in appeal or the matter is remanded for fresh adjudication. 2. It would be pertinent to mention that the Revenue had recently filed a Special Leave Petition against Mumbai High Court s order in the matter of NELCO LTD, challenging the grant of interest on delayed refund of pre-deposit as to whether : (i) the High Court is right in granting interest to the depositor since the law contained in Section 35F of the Act does in no way provide for any type of compensatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pending with the authorities will also be treated as simple letters asking for return of the deposits, and will be processed as such. Similarly, bank guarantees executed in lieu of cash deposits shall also be returned. 4. The above instructions may be brought to the notice of the field formations with a request to comply with the directions and settle all the claims without any further delay. Any deviation and resultant liability to interest on delayed refunds shall be viewed strictly. 5. All the trade associations may be requested to bring the contents of this circular to the knowledge of their members and the trade in general. 10. Be that as it may, the judgment of the Hon ble Delhi High Court in the case of Commissioner of C ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
