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TMI Blog2023 (6) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... -in-original No. Raigad/ADC/21/RGD/2008-09 dated 31.12.2008, passed by Additional Commissioner, Central Excise, Raigad, with Commissioner (Appeals), Mumbai Zone-II. The said appeal was decided vide order-in-appeal No. YDB/256/RGD/2010 dated 20.05.2010 setting aside the said order-in-original and allowing their appeal. 2.1 The refund claim was sanctioned in favour of the appellant. However, subsequently the order of sanction was reviewed and a protective demand was also issued to the appellant asking to show cause why the refund of this amount sanctioned to them should not be demanded and recovered along with appropriate interest. Commissioner (Appeals) set aside the refund order dated 27.10.2010. Taking note of the above, original authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged and set aside by the revenue authority. That being so, the order of Commissioner (Appeals) adjudging the issue in favour of the appellant acquired finality. 3.3 Now the refund claim filed is sought to be rejected by application of the principles of unjust enrichment. 3.4 It is settled principles of law that pre-deposit is excluded from the said principles as it is made against an order issued by the appellate authority under Section 35F of the central Excise Act, 1944. 3.5 Tribunal has in the case of National Organic Chemical Industries Ltd. ]2021 (378) ELT 314 (Tri.-Mumbai)] held as follows:- "10. That pre-deposit is to be excluded from the test of 'unjust enrichment', and for obvious reasons, is common ground as is evident from C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aws (Amendment) Act, 1991, that the authoritative exposition of the doctrine by the Hon'ble Supreme Court in re Mafatlal Industries Ltd. as interdict on access to the refund of taxes collected without authority of law offered the wider understanding, and acceptance, that it now has. It would be safe to hazard a guess that the appellant herein may well have secured their claim with a nominal exertion for waiver, and, thus, ousted the possibility of denial put forth now by the lower authorities, had they been prescient of the alteration that was to occur four years thence even as their appeal lay undisposed; that obeisance to superfluity would have been but a small price to pay for the elapse of two more decades before their claim was taken u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of unjust enrichment would apply and since the appellant could not satisfy the authorities that the burden was not passed on the ultimate consumers, the appellant was not entitled to refund. Against the order, the appellant approached the High Court. The High Court has, by the impugned judgment dated 15-12-2005, allowed the refund to the extent of Rs. 17.50 lakhs and rejected the prayer for the refund of balance amount of Rs. 23,98,178/-. The High Court has held that insofar as the amount of Rs. 17.50 lakhs is concerned, the sum was deposited pursuant to the interim orders dated 4-5-1992 and in that order, it was specifically mentioned that if the appellant ultimately succeeds, the said amount would be refunded. Insofar as the balance amou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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