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TMI Blog2014 (3) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... e hardly involves any legal issue but we feel more concerned about the hard luck of the appellant, a manufacturer of PVC Coal Conveyor Belting made from imported Nylon Yarn. We do not propose to go into the circumstances in which the litigation had started but we start from the point which gave rise to some confusion and as a result thereof the appellant was dragged to the present litigation. 3. Upon hearing the learned counsel appearing for the parties and on perusal of the impugned order and other relevant orders, we find that there was some issue with regard to imposition of duty on import of Nylon Yarn. It was held by the Central Excise & Gold (Control) Appellate Tribunal, New Delhi by its order dated 5th April, 1991 that the case put ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund should not be rejected on the ground of unjust enrichment as the amount of tax was alleged to have been recovered by the appellant from M/s. Coal India Ltd. and M/s. Singarani Collieries Co. Ltd., to whom the goods had been supplied by the appellant. 7. In pursuance of the aforestated show cause notice, the appellant had given its reply on 9th May, 1994 giving details to the effect that the amount of duty paid had never been recovered from the aforestated two units which were substantially controlled by the Government. Necessary evidence was also adduced and even the aforestated two units also confirmed the fact that the aforestated amount of duty paid by the appellant had not been collected from them. The said reply was duly consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector, Central Excise and Customs, Aurangabad passed the following final order: "I hereby sanction the refund u/s 27 of C.A. - 1962 claim for Rs.17,35,119/- with a condition that the party should give an undertaking that they will pay back money to the Government in case Supreme Court decides the SLP No.2332/92 U.O.I. Vs. M/s. Solar Pesticides Pvt. Ltd. in favour of the Department." 9. Apparently, there was no issue of captive consumption in the instant case and yet the appellant was directed to file an undertaking as stated hereinabove in the order. Being in need of money, the appellant filed an undertaking under protest, though, in our opinion, it was not necessary for the Deputy Collector, Central Excise and Customs, Aurangabad to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003 and thereupon by an order dated 14th July, 2003 the said show cause notice had been dropped. 12. The order dated 14th July, 2003, whereby the show cause notice dated 3rd March, 2003 had been dropped, was taken into review and by an order dated 31st March, 2004 the said review was allowed and thereby once again the appellant was asked to pay the amount which had already been refunded to it. 13. The said order dated 31st March, 2004 was challenged by the appellant before the Tribunal and the Tribunal was pleased to dismiss the said appeal and the impugned order of dismissal dated 6th September, 2004 has been challenged by the appellant in this appeal. 14. Upon hearing the concerned counsel and looking at the facts of the case, it is v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Companies or Corporations controlled by the Government. It has been clearly stated in the aforestated order dated 5th April, 1995 that even the purchasers had admitted the fact that the amount of duty paid by the appellant had not been passed over to the said purchasers or in other words, the said amount of duty had not been recovered from the said purchasers. 15. We fail to understand as to how the judgment delivered in U.O.I. Vs. M/s. Solar Pesticides Pvt. Ltd. (supra) is applicable to the case of the appellant. Neither this is a case of captive consumption nor is a case of unjust enrichment. 16. For the aforesaid reasons, we quash and set aside the impugned order passed by the Tribunal dated 6th September, 2004. The appeal is allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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