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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 ..... eclaration to the effect that they had not availed Cenvat Credit on the Inputs. The officers of the Central Excise, Ahmedabad visited the premises of the appellant and conducted search and withdrew the papers; on scrutiny of which it transpires that the appellant had claimed Drawback as well as Cenvat Credit on the Inputs. Jurisdictional Ahmedabad Central Excise officers informed the appellant that they cannot do so. The appellant deposited an amount of Rs. 10 lacs by a cheque, which was deposited into Governments accounts despite the issue of cheque was deposited in the month of April 2007, no further action/activity was initiated by the revenue authorities against the appellant. Appellant filed a refund claim for this amount of Rs. 10 lac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief to the assessee. It is his submission that the Revenue aggrieved by such an order took up the matter in appeal to the Hon'ble High Court of Gujarat and the Hon'ble High Court upheld the order passed by the Tribunal as reported at 2010(258)ELT.217(Guj). 4. Learned Department Representative on the other hand would submit that the appellant is trying to take advantage of both the benefits i.e., claiming duty Drawback as well as taking Cenvat Credit. He would submit that the appellant has correctly deposited the amount and question of refunding the same would not arise. He would submit that has been decided by the Apex Court in the case of Sahakari Khand Udyog Mandal Ltd - 2005 (181) ELT.328 that every refund application has to pass the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n correctly discarded by the First Appellate Authority as there is nothing on record to indicate that the amount of Rs. 10 lacs paid by the appellant was an amount of duty. If the assessee deposits 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. In my view, the First Appellate Authority having correctly discarded the findings on limitations, could not have proceeded and held against the appellant on the ground of unjust enrichment on these points itself, the impugned order is liable to be set aside. 7.2 Secondly, I find that in similar set of facts, the case of Mahalaxmi Exports (Supra), (an ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deciding the case set aside the demand. The order was not challenged by the department at any stage. Nor department could produce any evidence that the amount deposited by the appellant was appropriated at any stage, therefore, the same cannot be treated as duty. The Tribunal in the case of Rajiv Plastics Industries (supra) held that order-in-appeal passed by Commissioner (Appeals) on 23-2-2006 stands accepted by the Revenue and the refund of deposit made by the appellant, as a consequent of above order, is required to be sanctioned. The Honble Tribunal in the case of Commissioner of Customs, Bangalore v. Motorola India Pvt. Ltd. held that when the duty paid during the pendency of an appeal before the appellate authority is considered as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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