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TMI Blog2018 (2) TMI 494X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment and the assessment has been finalized later on. So, therefore the amount paid by the appellant during the pendency of adjudication proceedings shall be the equivalent amount paid pending adjudication - after finalization of assessment, whatever excess duty has been paid by the appellant is refundable. The appellant is entitled to avail refund claim to excess duty paid by them before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of provisional assessments it was found that the appellant has paid excess duty, therefore, the appellant filed refund claim of the excess duty paid by them. The said refund claim was rejected holding that the appellant did not opt for provisional assessment and voluntarily paid the amount. The said amount is received by the department, therefore, the appellant has failed to pass the bar of unjust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment and on finalization of assessment, the excess amount paid by the appellant, being not belong to the Revenue, is refundable and bar of unjust enrichment is not applicable, as held by the Hon ble Allahabad High Court in the case of Ebiz. Com Pvt. Ltd. Vs. Commissioner of Central Excise, Customs Service Tax - 2017 (49) STR 389 (All.). Therefore, they are entitled to claim the refund. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been fixed by the Govt. of India and till now the prices of petroleum or diesel have been fixed on daily basis by the Govt. of India. In that circumstances, the arguments advanced by the Ld. AR for the Revenue that the price is fixed by Govt. of India is not a mere presumption. On the basis of arguments, the short issue before me is that whether the amount paid at the time of provisional assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation is in the nature of deposit made under protest or pre-deposit and, therefore, principles of unjust enrichment would not be attracted. 35. The consensus of the authorities of various High Courts as well as Supreme Court is that any amount received by Revenue, as deposit or pre-deposit i.e. unauthorizedly or under mistaken notion, etc., cannot be retained by Revenue since it h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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