9911796707
TMI Blog2023 (6) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... decisions cited supra, the position adopted in the impugned order that the original authority was, in discarding the claim of the appellant that the payment of differential duty was pre-deposit, is not incorrect cannot be affirmed by us as legal and proper. Further, in the case of THE COMMISSIONER OF CENTRAL EXCISE, PUNE 1 COMMISSIONERATE VERSUS M/S SANDVIK ASIA LTD. [ 2015 (10) TMI 719 - BOMBAY HIGH COURT] , Hon ble Bombay High Court has held that Tribunal was not concerned with the treatment given to the amount and as deposited in the Assessee's profit and loss account. It is immaterial and irrelevant for the Tribunal and equally for us as to what the Assessee terms this amount in his Books of Account. Even if it is shown on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Commissioner (Appeals) set aside the refund order dated 27.10.2010. Taking note of the above, original authority passed the order confirming the demand. Appellant preferred an appeal to the Commissioner (Appeals) and he observed as follows:- I have gone through the case records and considered the averments made in the appeal and reiterated at the time of hearing. The main issue involved in the case is admissibility of the refund claim which has been already decided vide Order-in- Appeal No. US/454/RGD/2011 dated 30.11.2012. It was held that in view of the decisions of the Hon'able Supreme Court in Sahakari Khand Udyog Mandal V/s CCE-2005 (181) ELT 328 (SC) and CCE V/s Parle International -2005 (188) ELT 81 (SC) the law is settle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pre-deposit is to be excluded from the test of unjust enrichment , and for obvious reasons, is common ground as is evident from Circular No. 984/8/2014-CX, dated 16th September, 2014 of Central Board of Excise Customs stating categorically that this is not tantamount to payment of duty and that 5.2 Hence, refund of pre-deposit need not be subjected to the process of refund of duty under Section 11B of the Central Excise Act, 1944 or Section 27 of the Customs Act, 1962.... The entire dispute commencing with the notice to discard the claim for concessional rate of duty on the goods imported in June/July, 1987 and culminating in the endorsement of the declaration in the bills of entry by the Tribunal in October, 1998 occurred bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eisance to superfluity would have been but a small price to pay for the elapse of two more decades before their claim was taken up for judicial determination. 16. In view of the specific provision of Section 129E of Customs Act, 1962, as elaborated by us, and the several decisions cited supra, the position adopted in the impugned order that the original authority was, in discarding the claim of the appellant that the payment of differential duty was pre-deposit, is not incorrect cannot be affirmed by us as legal and proper. Consequently, the competent authorities are directed to ensure compliance with Circular No. 984/8/2014-CX, dated 16th September, 2014 of Central Board of Excise Customs for disposal of the refund without fail and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order, it was specifically mentioned that if the appellant ultimately succeeds, the said amount would be refunded. Insofar as the balance amount is concerned, the prayer for refund is rejected on the ground that it has been an amount deposited pursuant to order passed by the Court and in fact, the appellant was made to deposit this amount as it committed default of the conditional order passed and upon that, the interim orders were vacated and as a consequence thereof, the Department had encashed the Bank Guarantee. Therefore, insofar as this amount is concerned, doctrine of unjust enrichment was applied. Against this order, the present special leave petition was filed in which leave was granted and that is how the present appeal arises for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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