2009 (3) TMI 600 - AT - Central Excise

Refund - Proceedings were initiated against the appellant on the ground that they could not have taken suo moto credit of the above amount and they should have applied for refund and the same - It is again well settled that the provisions of unjust enrichment or limitation do not apply to such refund of pre-deposit - As such there could be no objection by the Revenue for the refund of such pre-deposited amount - The same are accordingly set aside and appeal allowed with consequential relief to the appellant

Summary

Issues:
1. Refund of pre-deposit under Section 35F of Central Excise Act.
2. Applicability of unjust enrichment and limitation provisions.
3. Validity of taking suo motu credit instead of applying for refund.
4. Imposition of penalty by Original Adjudicating Authority.

Analysis:
1. The appellant deposited Rs. 40,000 as per the Tribunal's stay order, which was later refunded after their appeal was allowed. The Revenue objected to the appellant taking credit instead of applying for a refund. The Tribunal noted that the refund accrued immediately upon the appeal's success, and provisions of unjust enrichment or limitation did not apply. Citing a precedent, the Tribunal found no justification for confirming the amount against the appellant, setting aside the impugned orders and allowing the appeal with consequential relief.

2. The Tribunal emphasized that the refund of pre-deposit, upon appeal success, did not fall under the purview of unjust enrichment or limitation provisions. It clarified that the Larger Bench decision cited by the Revenue was not directly applicable to the case, as it did not address the specific issue of refund of pre-deposit upon appeal success. Consequently, the Tribunal found no grounds to uphold the imposition of the confirmed amount against the appellant.

3. The Revenue contended that the appellant should have approached them for the refund instead of taking suo motu credit. However, the Tribunal observed that the appellant had intimated the Revenue and availed the credit upon the Tribunal's order. Given that the refund accrued immediately upon appeal success, the Tribunal found no basis for the Revenue's objection to the appellant's action of taking credit instead of applying for a refund. The impugned orders were set aside, and the appeal was allowed in favor of the appellant.

4. In addition to the refund issue, the Original Adjudicating Authority had imposed a penalty of Rs. 5,000 on the appellant. The Tribunal's decision to set aside the impugned orders and allow the appeal with consequential relief also implied the removal of the imposed penalty. The Tribunal further mentioned the disposal of the stay petition in the same context, bringing a comprehensive resolution to the matter before it.

This detailed analysis of the judgment from the Appellate Tribunal CESTAT, Ahmedabad highlights the key issues, legal interpretations, and the ultimate decision in favor of the appellant regarding the refund of pre-deposit under the Central Excise Act.