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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 ..... der]. - 1 . This appeal is directed again Order-in-appeal No. PIII/BBP/124/2006 2. Relevant facts that arise for consideration are that the appellant herein had procured H.R.. Coil and paints at NIL rate of duty under Notification No. 34/2001-C.E.(N.T.) dated 21-6-2001 for use in the manufacture of goods to be exported. The goods so procured were rejected and returned 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant to prove that the incidence of duty has not been passed on. He submits that once the amount has been shown as an expenditure in the books of account, automatically the said amount is transferred by way of cost of the finished goods, which is subsequently returned to the supplier which in turn could 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs faithfully For SHREE 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 paid as pre-deposit cannot be denied to the appellant. My above views are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 Section 11B(1) of the Central Excise Act, 1944 or under Section 27 (1) of the Customs Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 application filed by the revenue held as under :- "3. We have heard learned counsel for the Revenue and find that no question of law would arise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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