TMI Blog2022 (8) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... f adjudication proceedings or investigation, the said amount would be in the nature of deposit under protest and, therefore, the principles of unjust enrichment would not apply. In view of the catena of decisions, available on this issue, this Court answers the substantial question of law against the Revenue and in favour of the assessee. Invocation of time bar of section 11 (B) of Central Excise Act, 1994 - HELD THAT:- It is observed that amount, the refund whereof was claimed, is an amount which was deposited by the appellant during the stage of investigation when impugned demand was proposed. Once the said proposal has failed to attain finality i.e. when the duty demand has been set aside, the aforesaid was not the deposit with reference to duty but was deposit under protest. Since it is not the amount of duty Section 11 (B) of CEA, 1944 and the time bar therein cannot be invoked - thus, the entire amount of Rs.6,27,728/- is to be refunded to the appellant alongwith interest as already been ordered by Commissioner (Appeals) in order dated 16.07.2019. Otherwise also it is observed that the Reviewing Authority has not challenged the findings as far as the non-applicability of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esh bearing No.590/2019 20 dated 27.11.2019 wherein the presumption of section 12B of Central Excise Act 1944 has been invoked and it was held that Order of the Adjudicating Authority sanctioning a refund claim of Rs.4,47,929/- has not checked about the proof regarding non- subsummation of the said amount in the expense by the parties for no unjust enrichment to the party. 1.2 Pursuant to the said order that the Department filed an appeal before Commissioner (Appeals) who vide order No.1096/2019 dated 08.10.2020 has accepted the Departments contention that there was no material before the original adjudicating authority to arrive at the conclusion that unjust enrichment clauses is not applicable in the present case. Resultantly, the Departments appeal was allowed by way of remand. Still being aggrieved, the appellant is before this Tribunal. 2. I have heard Mr.Rupender Sinhmar, ld. Counsel for the Appellant and Mr. Ishwar Charan, ld. Authorised Representative for the Revenue. 3. It is submitted by the ld. Counsel for the appellant that Commissioner (Appeals) in its order dated 16.07.2019 has already held that the amount in question, since it was deposited at the stage of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d above the amounts stipulated under Section 35 F of the Act, 1944 shall not be treated as deposit under the said sections. Since the amount of pre-deposit of Section 35 F i.e. Rs.1,79,799/- (10% of amount of demand of Rs.17,97,986/-) has already been refunded, the balance amount cannot be considered as pre-deposit. It is impressed upon that there is no infirmity while asking the proof of no unjust enrichment attained by the appellant as far as the balance amount is concerned. Commissioner (Appeals) is mentioned to have rightly relied upon the decision of this Tribunal in the case of Ratnamai Metals Tubes Ltd. reported as 2019 (366) ELT 139 (Tri-Admd.). Appeal in hand is accordingly, prayed to be dismissed. 6. After hearing the rival contentions and perusing the entire record it is observed and held as follows:- The order under challenge is with respect to the amount of Rs.6,27,728/- (excluding Rs.1,79,799/- as has been refunded being amount of pre-deposit) as was deposited by the appellant during investigation and the said amount was appropriated by the original adjudicating authority while confirming the entire duty demand of Rs.17,97,986/- vide its order dated 06.12.2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the amount deposited in the year 2016 during an investigation about proposed duty demand for the clearances made by the appellant in the period 2009-2011. The question of passing of the burden of an amount 5 years prior the amount was deposited is not at all possible. There was no need for the Reviewing Authority to take altogether different ground that too the one which is apparently not sustainable. The issue regarding application of principles of unjust enrichment to refund of pre-deposit is no more res integra. The Hon ble High Court of Madras in the case of Commissioner of Central Excise, Coimbatore vs. Pricol Ltd. reported as 2015 (320) ELT 703 (Mad.) has held as follows:- 7 . The first question of law, which is raised, relates to the plea of unjust enrichment and much emphasis is laid on the decision of the Supreme Court in Mafatlal Industries case [1997 (89) E.L.T. 247 (S.C.)]. Relevant portion of the order passed by the Supreme Court in Mafatlal Industries case (supra) has been extracted in the grounds (b) and (c). There is no dispute with regard to the proposition of law as laid down by the Supreme Court. In the present case, as is evident from the records, it is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence to prove that the certificate of the Chartered Accountant M/s. Damle Dhanndhania Co., is false. Therefore, we are of the considered view that rejection of refund claim on the ground of doctrine of unjust enrichment is not legal and proper. 12. Hon ble High Court of Delhi in the case of Team HR Services Pvt. Ltd. vs. Union of India reported in 2020 (38) GSTL 457 (Del.) has held that: When a refund of amount deposited during investigation is being claimed by the assessee. The same has to be sanctioned, the amount deposited under protest, Hon ble High Court has gone to explain that when reasons disclosed in order refusing refund found to be illogical and dehorns the statutory provisions and further when state is found to be illegally holding money it becomes the case for issuing mandamus as sought for in terms of Article 265 of Constitution of India since the Department had no authority to retain the amount which was declined to be the amount of liable duty, by the competent authority. The state is held to have illegally retained the amount. Once there was no possibility of passing over the incidence invoking the presumption of unjust enrichment made by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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