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TMI Blog2018 (4) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... ving that the principle of Unjust enrichment is applicable to refund of duty on goods captively consumed, this Tribunal remanded the matter to the Adjudicating Authority with the liberty to the appellant to produce evidences to establish that the incidence of duty has not been passed on to others - Consequently, the appellant produced the evidences before the Adjudicating Authority and established that the incidence of duty has not been passed on to others. There was no basis for denying interest on delayed refund to the appellant - appeal allowed - decided in favor of appellant. - Appeal No. E/1483/2010 - Order No. A/10601 / 2018 - Dated:- 27-3-2018 - Dr. D. M. Misra, Hon'ble Member ( Judicial ) For the Appellant : Shri Amal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006 observing that the principle of unjust enrichment is not applicable to the refund amount. The appeal filed by the Revenue against the said order was dismissed by the Ld. Commissioner (Appeals) by order dated 02.04.2007. 3. Also, in the meantime, the appellant after receipt of the refund claim on 27.10.1999, filed their claim on 03.11.1999 for interest amounting to ₹ 44,28,444/- on the delay in sanctioning/receiving the refund amount for the period from 26.08.1995 to 26.10.1999. The said interest was sanctioned by the Adjudicating Authority in its order dated 30.04.2008. Aggrieved by the said order, Revenue filed an appeal before the Ld. Commissioner (Appeals). Also, a SCN was issued to the appellant on 03.03.2009 for recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority. It is his contention that the admissibility of interest on delayed refund has already attained finality by the order dated 29.09.2016, therefore, to examine the issue again and arrive at a different conclusion, in disposing the present appeal, arising out of confirmation of the demand notice for recovery of the interest, would hit the principle of res-judicata. 5. Per contra, the Ld. AR for the Revenue on the other hand has submitted that before this Tribunal, while deciding the issue of admissibility of interest for the period after expiry of three months from 26.05.1995, the relevant facts had not been considered and the order was passed. It is his contention that the order is sub-silentio, hence, cannot be considered a binding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stomers. It is his contention that therefore the appellant are not eligible to interest for the period 26.08.1995 to 26.10.1999, since, during this period the issue of unjust enrichment had not been established by the appellant by producing documents/evidences, hence, the refund amount was transferred to Consumer Welfare Fund. It is his further contention that therefore the judgement of the Hon ble Gujarat High Court in the case of Purnima Advertising Agency Pvt. Ltd. Vs. UOI 2016 (42) STR 785 (Guj.) is not applicable to the facts of the present case. Elaborating his argument further and referring to the observation of the Hon ble Gujarat High Court, the Ld. AR has submitted that at Para 9 of the said judgement it has been observed that all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellate proceedings against the said order dated 30.04.2008 concluded in favour of the appellant by order of this Tribunal dated 29.09.2016. The second proceeding i.e. demand notice was confirmed against the appellant by both the authorities below now is a subject matter dispute. The Ld. Advocate for the appellant submits that since the issue admissibility of interest for the period from 26.08.1995 to 26.10.1999 has been conclusively decided in their favour by this Tribunal, the same should be followed and binding for the present proceeding. The Revenue on the other hand submitted that while deciding the issue in favour of the appellant, this Tribunal had not considered certain facts, if the same are considered now the appellant woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Tribunal remanded the matter to the Adjudicating Authority with the liberty to the appellant to produce evidences to establish that the incidence of duty has not been passed on to others. Consequently, the appellant produced the evidences before the Adjudicating Authority and established that the incidence of duty has not been passed on to others. In these circumstances, I do not find any basis for denying interest on delayed refund to the appellant as held by this Tribunal while disposing their appeal vide order dated 29.09.2016, following the ratio laid down by Hon ble Gujarat High Court in Purnima Advertising Agency Ltd s case (supra). In the result, the impugned order is set-aside and the appeal is allowed with consequential relief ..... X X X X Extracts X X X X X X X X Extracts X X X X
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