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TMI Blog2014 (7) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... eposits any amount during investigation, said amount unless on confirmation appropriated, cannot be considered as duty and the provisions of Section 11B of the Central Excise Act 1944 cannot be applied. - Following decision of Jalan Dyeing and Bleaching Mills [2011 (6) TMI 513 - CESTAT, MUMBAI] refund allowed - Decided in favour of assessee. - Appeal No. : E/444/2012 SM - ORDER No. A/10508/2014 - Dated:- 4-4-2014 - Mr. M.V. Ravindran, J. For the Appellant : Shri Paritosh Gupta (Adv.) For the Respondent : Shri J Nagori (AR) JUDGEMENT Per : Mr. M.V. Ravindran; This appeal is directed against OIA No. OIANo.116/2012(Ahd) CE/ MM/Commr(A)/Ahd dtd 30.03.2012. 2. The relevant facts that arise for consideration are the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity. He would draw my attention to the findings recorded by the First Appellate Authority wherein the First Appellate authority has held that the refund claim was within the time and the amount of ₹ 10 lacs which was paid was never appropriated hence the same cannot be termed as duty. He would then submit that the question of unjust enrichment will not arise in this case as the entire amount which has been paid by the appellant is deposited which was accepted and kept by the Department. He would submit on an identical issue, the coordinate Bench of the Tribunal in the case of Jalan Dyeing Bleaching Mills 2011 (272) ELT. 408 has held in favour of the assessee. He would produce the copy of the said judgment. He would also submit in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cenvat Credit on the Inputs which are consumed for manufacturing of goods which are exported and duty drawback has been claimed. It is seen from the records that there is no appropriation of the amount of ₹ 10 lacs deposited into the Government treasury from the appellants in any form. There is no also Show Cause Notice, or confirmation of demand of any kind on the appellant. 7. On this factual matrix now it requires to be gone into whether First Appellate Authority was correct in upholding the Order of rejection of refund claim. In my considered view, the impugned order is incorrect for more than one reason. 7.1 Firstly, the Adjudicating Authority had rejected the refund claim only on the ground that the refund claim is hit by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has arrived on this finding after considering the facts of the case and issue was finalised and no further appeal was preferred by the department against the order of the Commissioner (Appeals), we are of the view that no substantial questions of law arises out of the order of the Tribunal. 8. I also find on similar set of cases the coordinate Bench of the Tribunal in the case of Jalan Dyeing and Bleaching Mill (Supra) has considered the issue of refund of the amount deposited by the by the assessee during investigation, the Bench recorded the following findings : I have considered the submissions and gone through the records. Undisputedly, the appellant paid an amount of ₹ 1,75,000/- during the investigation and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds the reliance placed by the ld. SDR in the case of Sahakari Khand Udyog Mandal Ltd. (supra), while dealing with the case of rebate on excess production of sugar the Hon ble Supreme Court held that all the authorities below have expressly recorded a finding that the appellant-Mandal has recovered the amount from consumers and as such excise duty is passed on to consumers/customers. This would indicate that the petitioner in that case had recovered the amount from their customers as is clear from para 49 of the said decision. In the present case, the amount has been paid as a deposit subsequent to the clearance made by the appellant. Therefore, the decision is not relatable to the present case. 9. The issue in this case in hand is simi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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