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TMI Blog2007 (10) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... rned to the supplier (without payment of duty). The authorities came to the conclusion that since the procured goods were not used for intended purpose, the appellant is liable to pay duty amounting to Rs. 2,51,092/- and directed the appellant to do so. The appellant paid the duty "under protest". Subsequently, the appellant filed the refund claim of Rs. 2,51,092/- on the ground that the return of the rejected goods procured duty free cannot be termed as utilization for purpose other than intended. The said contention of the appellant was rejected against which the appellant filed an appeal before the Commissioner (Appeals), who allowed the appeal. Subsequently, appellant filed a refund claim as consequential relief. The adjudicating author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld mean collection of the amount from the customers. He reiterates the findings of the Commissioner (Appeals) and submits that the findings are correct and does not require any interference. 5. Considered the submission made by both sides and perused the re cords. It is undisputed that the amount of Rs. 2,51,092/- was paid by the appellant on the direction of the lower authorities on the ground that they had re turned the H.R. Coil and Paints which were received at NIL rate of duty under Notification No. 34/2001-C.E. (N.T.) dated 21-6-2001. It is also undisputed that the appellant is permitted to receive these goods without it payment of duty. It is also not disputed that the said H.R. Coil and Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... REE PERCOATED STEELS LTD Sd /- AUTHORISED SIGNATORY." On perusal of the above reproduced letter it is very clear that the appellant had deposited the amount as pre-deposit of the duty and preferred to litigate the matter. It is seen that the issue has been finally decided in favour of the appellant by way of an order of the Commissioner (Appeals) on merits. The said matter has not traveled further beyond. In other words, the appellant is not required to pay duty on inputs which were rejected and returned back to the supplier. If that be so, the consequent relief in form of refund of the amount which has' been p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch amounts deposited after adjudication have to be treated as deposits and not duties and would not attract the provisions of unjust enrichment. The Board's Circular No. 275/37/2K-CX. 8A dated 2-1-2002 has examined the issue relating to the re fund of pre-deposit made during the pendency of the appeal and it was decided that since the practice in department had all along been to consider such deposits as other than the duty, such deposits should be returned in the event the appellant succeeds in appeal or the matter is remanded for fresh adjudication. In para 3 of the said Circular the Board's observed as under : - "In order to attain uniformity and to regulate such refunds it is clarified that refund applications under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Hon'ble Supreme Court. As such, in our view it cannot be reasonably concluded that the same would be hit by the bar of unjust enrichment. We accordingly set aside the impugned orders of the Commissioner (Appeals) and restore the order of the Assistant Commissioner. The appeal is allowed in above terms." 6. Further, I find in this case that the appellant had paid duty subsequent to the clearance of said goods back to the supplier (rejected inputs). The issue of unjust enrichment of such subsequent payment made by an assessee was an issue before the Hon'ble High Court of Punjab & Haryana in the case of Modi Oil & General Mills (supra) wherein their Lordships on a reference ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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