2008 (3) TMI 181 - AT - Customs

Refund - Amount deposited during investigation - amounts which were deposited during investigation can not be considered as deposit of duty - Assessee claim that they have shown impugned amount as expenditure so question of passing of incidence of duty to customer doesn t arise, is acceptable - Revenue cannot raise a ground of unjust enrichment by filing an appeal - Revenue shall reimburse the amount with appropriate interest

Summary

Issues:
1. Appeal against Order-in-Appeal reversing Order-in-Original granting refund.
2. Consideration of amounts deposited during investigation.
3. Unjust enrichment and accounting treatment.
4. Applicability of judgments on erroneous refund and unjust enrichment.
5. Revenue's right to file appeal against refund orders.

Analysis:
1. The appeal in question stemmed from the reversal of an Order-in-Original granting a refund by Order-in-Appeal No.52/2007 Cus. The Assistant Commissioner had granted the refund, which was challenged by the department based on the ground of unjust enrichment, leading to the appeal before the Tribunal.

2. The appellants had made deposits during the investigation, which were not considered as duty deposits. The Tribunal cited precedents to establish that such deposits do not fall under the purview of unjust enrichment. The amounts shown in the expenditure column were not subject to recovery as duty deposits, as clarified in previous judgments.

3. The issue of unjust enrichment was crucial in this case, as the department contended that the amounts refunded were passed on to consumers. However, the Tribunal found that the amounts deposited during investigation did not result in unjust gain to the appellants, as confirmed by the accounting treatment and the absence of recovery from consumers.

4. The Tribunal relied on judgments such as CC, Bangalore Vs. Motorola India Pvt. Ltd. and Pricol Limited Vs. CCE, Coimbatore to support the decision. These judgments highlighted the necessity for the Revenue to issue a demand notice in cases of erroneous refunds and emphasized that the aspect of unjust enrichment must be carefully assessed.

5. The Tribunal rejected the Revenue's argument that an appeal could be filed against the Order-in-Original granting a refund based on the details in the balance sheet. The Tribunal upheld the appeal, emphasizing that the amounts refunded were not subject to unjust enrichment and that the Revenue's appeal was not justified. The decision mandated the Revenue to reimburse the amount with appropriate interest, if not already done, based on the Final Order issued previously.