9911796707
TMI Blog2013 (1) TMI 813X X X X Extracts X X X X X X X X Extracts X X X X ..... would be hit by the concept of unjust enrichment in the facts of the instant case. 2. The relevant background aspects of the matter could be noticed in the following : The respondent-assessee is engaged in manufacture of wool worsted and polyester blended yarn. The Assistant Commissioner, Central Excise Division, Bhilwara finalized the provisional assessment in relation to the respondent-assessee by the Order-in-Original dated 31-3-2003. The Assistant Commissioner held that during the period in question, the assessee had short paid the central excise duty to the tune of ₹ 10,55,436/-; and since the duty of ₹ 8,29,816/- had already been debited in PLA, the assessee was directed to deposit the remaining amount of ₹ 2, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerns during the period from April 2001 to March 2002. The assessee may file a separate refund claim for this amount of excess payment under Section 11B, if they have not passed on the incidence of said excess duty to the ultimate customers. (3) I also order them to pay the applicable interest leviable thereon on account of delayed payment of the differential duty under Rule 7(4) of the Central Excise Rules, 2002 and that interest amount to be paid within 7 days of receipt of the order. 4. The assessee filed an appeal against the aforesaid order dated 31-3-2003 before the Commissioner (Appeals-II), Jaipur. The Appellate Authority by its order dated 5-9-2003 directed the assessee to make pre-deposit in regard to the duty found sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of ₹ 2,25,620/- had been deposited by the assessee in compliance of the stay order dated 5-9-2003, the same was ordered to be refunded under Section 11B of the Act. The remaining amount of ₹ 1,17,784/- was, however, ordered to be transferred to the consumer welfare fund. The Dy. Commissioner ordered as under : - (1) In compliance of the order of the Commissioner (Appeals) dated 28-12-2003 I allow the adjustment of ₹ 225620/- short paid from ₹ 343405/- excess paid duty. Since the amount of ₹ 225620/- has already been deposited by the assessee in compliance of Commissioner (Appeals) stay order dated 5-9-2003. I sanction Refund of ₹ 225620/- under provisions of Section 11B of Central Excise Act, 1944 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing authority sanctioned the refund of ₹ 2,25,620/-. The Tribunal in the case of Godrej Industries Ltd. (supra) held that deposits made during pendency of appeal automatically become refundable to the assessee on success of their appeal and provisions of unjust enrichment are not attracted. Commissioner (Appeals) rightly upheld the Adjudication Order as the bar of unjust enrichment is not applicable on the pre-deposit. So, I do not find any reason to interfere with the order of the Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is rejected. 7. Assailing the order aforesaid, it is contended on behalf of the appellant that there being no provision for adjustment of excess paid duty under Rule 7 of the Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder-in-Original. It is difficult to apply the principles of unjust enrichment as regards the amount in question that had been deposited only in compliance of the requirement of the statute and the orders of the Appellate Authority. 11. In our view, the Dy. Commissioner, in his order dated 1-10-2004, has considered the case in its correct perspective while holding that the assessee was entitled to the adjustment of the short paid duty from out of the amount of excess paid duty. These directions have truly been in conformity with the order passed by the Commissioner (Appeals) on 28-11-2003 that had attained finality; and whereunder, the amount of ₹ 2,25,620/-, which was short paid, was to be adjusted from ₹ 3,43,404/- paid in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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