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2016 (8) TMI 1111 - CESTAT MUMBAI

2016 (8) TMI 1111 - CESTAT MUMBAI - TMI - Unjust enrichment - Refund claim - amount deposited by them on the direction of the higher judicial forum for hearing and disposing of the appeal filed by the appellant in respect of a period beyond limitation - Held that:- the judgment of the Hon’ble Delhi High Court in the case of Commissioner of Customs (I&G) v. Ericsson India Pvt. Ltd. [2013 (11) TMI 448 - DELHI HIGH COURT] very clearly lays down the law indicates that the amount deposited after the .....

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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 against Order-in-Appeal No: SB/39/M-IV/2009 dated 14/09/2009 passed by the Commissioner of Central Excise (Appeals), Mumbai Z .....

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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 ble High Court is no ground to withhold the legitimate refund of the appellant and t .....

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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 asses .....

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actured 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 .....

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yond the period of limitation. 8. I find that the Division Bench of this Tribunal in order dated 26/10/2005 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. Commi .....

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reference application filed by the Revenue stands rejected by the Hon ble High Court 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 t .....

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chment. By doing so, both the lower authorities have gone against the circular of CBEC No. 275/37/2K-CX.8A dated 02/01/2002 which reads as under: Subject : Return of deposits made in terms of Section 35F of the Central Excise Act, 1944 and Section 129E of Customs Act, 1962 - Reg. The issue relating to refund of pre-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 .....

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Act does in no way provide for any type of compensation in the event of an appellant finally succeeding in the appeal, and, (ii) the refunds so claimed are covered under the provisions of Section 11B of the Act and are governed by 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 reas .....

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return of the amount, along with an attested Xerox copy of the order-in-appeal or CEGAT order consequent to which the deposit made becomes returnable and an attested Xerox copy of the Challan in Form TR6 evidencing the payment of the amount of such deposit, addressed to the concerned Assistant/Deputy Commissioner of Central Excise or Customs, as the case may be, will suffice for the purpose. All pending refund applications already made under the relevant provisions of the Indirect Tax Enactment .....

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