2005 (10) TMI 25 - AT - Central Excise

Refund Held that whether the de novo proceedings are pending or not, if lower authority s order has been set aside then all sums paid in pursuance of order of lower authorities are to be refunded However, refund itself will be governed by the provisions of Unjust Enrichment

Summary

Issues:
Refund of duty paid in pursuance of an order of final assessment.

Analysis:
The case involved a dispute regarding the refund of duty paid by the respondents in pursuance of an order of final assessment. The respondents paid an amount of Rs. 65,05,506 in compliance with the Deputy Commissioner of Central Excise's order and later appealed to the Commissioner (Appeals) against the same. The Commissioner remanded the matter for fresh consideration, leading the respondents to claim a refund of the amount paid, arguing that it was a deposit made and should be refunded since the original order was set aside. The Deputy Commissioner rejected the refund application, citing ongoing de novo proceedings as the reason. However, the Commissioner, in the impugned order, directed the refund of the amount, prompting the Revenue to appeal the decision.

The Revenue raised four main contentions before the Appellate Tribunal. Firstly, they argued that the Commissioner erred in ordering the refund while de novo proceedings were still pending. Secondly, they contended that the amount paid was not a pre-deposit but part of the duty payable upon finalizing provisional assessment. Thirdly, they asserted that Section 11B governing refunds should apply fully in cases of final assessment orders. Lastly, they claimed that the question of unjust enrichment was irrelevant until the de novo proceedings were completed.

The Tribunal, after hearing both sides, narrowed down the controversy to the core issue. They held that when an order is set aside by a higher authority, all amounts paid in compliance with the original order must be refunded. The Deputy Commissioner's argument that the refund application was premature due to pending de novo proceedings was deemed incorrect. The Tribunal emphasized that the refund was admissible as the original order ceased to exist post-appeal. However, they highlighted that the refund process must adhere to the principle of unjust enrichment, as clarified by the Supreme Court in a relevant case. The Tribunal disposed of the Revenue's appeal by upholding the refund of the duty paid by the respondents, subject to the bar of unjust enrichment being crossed.