TMI Blog2023 (4) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... 35F of the Central Excise Act states that a specific percentage of the duty or penalty must be deposited before filing an appeal. In the case of Suvidhe [ 1996 (2) TMI 136 - BOMBAY HIGH COURT ], the Division Bench of this Court observed that the amount deposited under Section 35F is not a duty at all but is the deposit of availing a remedy of appeal, and for this amount, Section 11B is not applicable. The Appellate Tribunal, in the present order, has concluded that in an earlier remand proceeding, the Tribunal had directed the Commissioner (Appeals) to re-examine whether the Appellant had passed on the duty burden or not and since this order was not challenged, the issue cannot be considered. However, when the Commissioner (Appeals) re-e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by them without payment of Central Excise duty, the Respondent Department opined that the Petitioner had wrongfully availed the benefit of the notification, and the show cause notice was issued to the Petitioner on 18 December 1987 demanding the Central Excise duty from the Appellant for clearance made during the period from 9 July 1985 to 10 March 1987. Pursuant to the show cause notice, the Respondent Department confirmed the demand for Central Excise duty by passing an order on 12 April 1988. The Appellant filed an Appeal along with the application for stay before the Customs, Excise and Service Tax Appellate Tribunal (Appellate Tribunal). The Appellate Tribunal granted a stay by order dated 21 September 1988 upon the Appellant bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted by the Appellant and observed that the Appellant had not produced any documents to establish that amount of duty of excise in relation to which refund was claimed was not passed by the assessee to any other person as envisaged under Section 11B of the Act of 1944. Accordingly, the Commissioner issued a show cause notice to the Appellant for rejection of the refund claimed for non-production and requisite evidence. 6. The Appellant replied to the show cause notice, and inter-alia contended that the deposits were in the nature of predeposits and Section 11B of the Act of 1944 had no application to the case. The Appellant, in addition, asserted that they had not passed on the disputed amount to any other person nor loaded the same to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - (a) Whether in the facts and circumstances of the case, the Appellate Tribunal was right in applying the bar of unjust enrichment for return of deposit made by the appellants under Section 35F of the Central Excise Act, 1944 ? (b) Whether the impugned order of the Appellate Tribunal is passed in violation of principles of natural justice ? 9. The learned Counsel for the Appellant submitted that the amounts were undoubtedly deposited as the pre-deposit under Section 35F and the concept of unjust enrichment as per Section 11B of the Act of 1944 does not apply. He submitted that this is irrelevant as to how the Appellant has treated the amount in its books of accounts, and no presumption that it has passed on to the consumer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee had termed the amount in his Books of Accounts and from which presumption would arise that the burden has passed on to the consumer. The Division Bench observed that repeatedly the Hon'ble Supreme Court has clarified that Section 11B, which relates to the claim of refund of duty, will not apply where the amount in question is deposited in compliance with the interim order, and no presumption would arise from how the amount is treated in the books of accounts. The Division Bench also relied upon the decision of the Supreme Court in the case of Commissioner v/s. Finacord Chemicals Pvt. Ltd. 2015 (319) ELT 616 S.C. It was also noted that the Special Leave Petition against the decision of this Court in the case of Suvi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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