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TMI Blog2009 (6) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... [Order per : A.K. Srivastava, Member (T)]. This stay petition has been filed by the applicants against the impugned order passed by the Commissioner by which he has confirmed the demand of duty of Rs. 63,93,405/- together with interest and imposed equivalent penalty of Rs. 63,93,405/-. 2. Heard both the sides and perused the records. 3. The short issue involved in the instant case is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Tri.-Mumbai)] (vi) Soubhagya Confectionery (P) Ltd. v. CCE, Hyderabad-I [2005 (68) RLT 650 (CESTAT-Ban.)] (vii) Asian Paints Ltd. v. The Commissioner of Central Excise, Mumbai. [2009 (246) E.L.T. 588 (Tri.) = 2009-TIOL-839-CESTAT-MUM.] 5. The Learned SDR relies upon the Tribunal Judgment in the case of Gujarat State Fertilizers and Chem. Ltd. v. C.C. C. EX., Vadodara [2005 (188) E.L.T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... richment, while holding that the excess duty paid should be adjusted against short payment. Adjustment is possible provided the excess duty paid has not been passed on to the buyers and the assessee is entitled to the refund. But the adjustment definitely cannot be allowed in a case where the excess duty paid has been passed on to the buyers and the assessee is not entitled to the refund on the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t conflict between the decisions cited by the applicants and that cited by the Learned SDR. While in the case laws cited by the applicants, the question of unjust enrichment was neither raised nor considered, and hence no findings recorded, in the case law cited by Learned SDR, the question of unjust enrichment was raised and considered and thereafter it was held that the duty short paid cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sit of the duty + interest demanded and penalty imposed. Keeping in view the facts and circumstances of the case, we direct the applicants to pre-deposit Rs. 63,93,405/- together with interest within 8 weeks and report compliance on 25-8-09. On pre-depositing the said amounts within the stipulated period, the pre-deposit of the equivalent penalty of Rs. 63,93,405/- is dispensed with and recovery t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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