TMI Blog2022 (11) TMI 1004X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to the directions by the Tribunal to decide the matter afresh in line with the decision of Hon ble Apex Court in the case of COMMISSIONER, CENTRAL EXCISE CUSTOMS VERSUS M/S LARSEN TOUBRO LTD. AND OTHERS [ 2015 (8) TMI 749 - SUPREME COURT] and also the decision of this Tribunal in the case of M/S BHAYANA BUILDERS (P) LTD. OTHERS VERSUS CST, DELHI OTHERS. [ 2013 (9) TMI 294 - CESTAT NEW DELHI (LB)] . Perusal makes it abundantly clear that amount in question of above facts is not yet held as the liability of the appellant. The department has no authority to retain such amount which otherwise is the amount of pre-deposit. Another fact of the present case is that pursuant to the said order application for refund was filed on 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd was confirmed along with interest and penalties vide the Order-in-Original dated 27.6.2013. The appeal thereof was rejected vide Order-in-Appeal dated 03.02.2014. The appellant approached this Tribunal assailing the said Order-in-Appeal. However, vide Final Order dated 15.3.2016, the appellant was directed to deposit Rs.15 lakhs as pre-deposit. The Hon ble High Court of Delhi was moved by the appellant against this Final Order. On 1.6.2016. Hon ble High Court of Delhi held that since the appellant has already deposited Rs.9.32 lakh, only Rs.5.77 lakh was to be deposited. Same was also observed to be deposited on 16.5.2016. Accordingly, this Tribunal was directed by the Hon ble High Court to hear the appeal on merits. In compliance of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the amount of refund claim so granted was not the amount of duty. Infact the issue about duty liability of the appellant arising out of three show cause notices (as mentioned above) is still under adjudication. Subsequent to the directions of this Tribunal vide Final Order dated 2.11.2017, the notice of hearing from department has been received by the appellant for such adjudication for 22.11.2022. Hence the amount in question is not the amount towards the duty. Department therefore was not entitled to retain the said amount. Accordingly, the refund thereof has to be sanctioned along with the interest. It is also mentioned that section 35FF has wrongly been invoked by Commissioner (Appeals). Learned Counsel has relied upon the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of CCE, Kerala vs M/s. Larsen Toubro Ltd. reported in [2016 1 SCC 170] and also the decision of this Tribunal in the case of Bhyana Builders Pvt. Ltd. reported in [2013 (32) STR 49 (Tri-DEL)]. 8. Perusal makes it abundantly clear that amount in question of above facts is not yet held as the liability of the appellant. The department has no authority to retain such amount which otherwise is the amount of pre-deposit. Hon ble Apex Court in the case of Mafatlal Industries vs Union of India reported as [1997 (89) ELT 247 (SC)] has appreciated the concept of unjust enrichment to apply not only upon the assessee but also on the Department. Accordingly assessee is held entitled for the refund of revenue deposits made by assessee that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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