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TMI Blog2004 (7) TMI 471X X X X Extracts X X X X X X X X Extracts X X X X ..... er-in-Original No. 36/CE/87, dated 20-11-87 and a penalty of Rs. 10 lakhs was also imposed. On Appeal the Tribunal vide Final order No. 291/94-C.E., dated 4-10-94 [1994 (74) E.L.T. 631 (Tribunal)] remanded the matter to the Adjudicating Authority with a direction to consider all the relevant aspects of the matter and pass an appropriate order. The Commissioner under Order-in-Original No. 153/CE/95, dated 4-8-95 confirmed the demand of duty of Rs. 14,31,495/- only and also allowed the Modvat credit equivalent to the amount of demand confirmed against them. The Commissioner also imposed a penalty of Rs. One lakh. 2.2 During the period November, 1987 to February, 1988, the Revenue had sanctioned 5 refund claims in entirely different matters in favour of the respondents. However, instead of refund being paid to the respondents, the Department adjusted total demand of duty of Rs. 30,34,806/- confirmed against them and penalty of Rs. 10 lakhs imposed on them under Adjudication Order dated 20-11-87. However, when the appellants filed the appeal along with stay application against Adjudication order dated 20-11-87, the Tribunal directed them to deposit an amount of Rs. 15 lakhs. 2.3 Af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor in the matter of Arbitration case between the Respondents and the Director Supplies and Disposal, Haryana; that thus principle of unjust enrichment will apply. He further, submitted that the entire amount of duty was realised by the Department by adjusting the same against the refund sanctioned to the respondents; that as such, no deposit has been made by the appellants under or in pursuance of the provisions of Section 35F of the Central Excise Act; that the amount adjusted towards confirmed demand under Section 11 of the Central Excise Act cannot be considered as a deposit; that accordingly the decision relied upon by the learned Advocate are not applicable to the facts of the present matter. He also mentioned that Haryana Government had also claimed the refund of duty in question; that the refund claim filed by them has been rejected as time-barred. Finally, he submitted that even if the duty realised by the Government by adjusting against the refund claim is regarded as deposit, the principle of unjust enrichment is applicable as held by the Supreme Court in the case of Union of India v. Jain Spinners Ltd. [1992 (61) E.L.T. 321 (S.C.)]; that the Supreme Court in the said ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot been obtained, this was recovered by the Department on their own by adjustment; that it was not the payment of duty and therefore, principles of unjust enrichment would not be applicable. He relied upon the decision of the Bombay High Court in the case of Suvidhe Ltd. (supra) wherein Bombay High Court has held that in respect of deposit made under Section 35F of the Act, doctrine of unjust enrichment will be inapplicable; that this judgment of Bombay High Court has been affirmed by the Supreme Court as reported in 1997 (94) E.L.T. A159. Reliance has also been placed on the following decisions :- (1) Parle International v. Union of India, 2001 (127) E.L.T. 329 (2) Mahavir Aluminium Ltd. v. CCE Jaipur, 1999 (114) E.L.T. 371 (Supreme Court) (3) Nelco Ltd. v. Union of India, 2002 (144) E.L.T. 56 (Bom.) 7. We have considered the submissions of both the sides. The facts which are not in dispute are that the demand of Central Excise duty of Rs. 30,34,806/- was confirmed against the respondents and penalty of Rs. 10 lakhs was also imposed on them. Subsequently both the duty and penalties have been set aside. It is also admitted fact that entire amount of duty and pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he himself has not suffered any loss or producing (that is, where he has passed on the burden to others) is no economic justice, it is the very negation of economic justice. By doing so, the State would be conferring an unearned and unjustifiable windfall upon the manufacturing community thereby contributing to concentration of wealth in a small class of persons which may not be consistent with the common good. 8. We also do not agree with the learned Advocate for the respondents that the amount of duty adjusted by the Revenue from the amount of refund is in the nature of deposit. The competent Adjudicating Authority has affirmed the demand of duty against the respondents under Section 11A of the Central Excise Act. Once the duty has been confirmed against the respondents, the same has became realisable from him unless and until its recovery is stayed or the demand of duty is set aside. Section 11 of the Central Excise Act provides for the recovery of sums due to Government. As per the provisions of this Section, duty or other sums may be realised by deducting from any money owing to the person from whom such sums may be recoverable or due which may be in his hands or under his d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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