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TMI Blog2024 (11) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... he import of Polyester Blankets/Polyester Mink Blankets made out of 100% Polyster Spun Yarn falling under Tariff Heading 63014000 of the Customs Tariff Act, 1975 during the period April, 2015 filed Bills of Entry No. 9059670 dated 24.04.2015 for the import clearance of Polyester Blankets/Polyester Mink Blankets from China. The goods were assessed to Basic Customs Duty and CVD leviable under Section 3(1) of the Customs Tariff Act, 1975 alongwith other duties payable under the Act. 2.2 The appellant took a stand that goods imported by them does not attract CVD leviable under Section 3 of the Central Excise Tariff Act, because the excise duty on the like articles if manufactured in India is exempted by Notification No. 30/2004-CE 09.07.2004; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant's own case in relation to earlier 36 Bill of Entries, allowed the appeal of the appellant with consequential relief vide Final Order No. 60376-60380/2019-CU (DB) dated 02.04.2019. He has also placed the said order of the Tribunal on record, he further submits that Order-in-Appeal dated 20.02.2019 passed by the Ld. Commissioner (Appeals) whereby, he has allowed the appeal of the appellant with consequential relief and the Department has not filed any appeal against the said order which has attained finality and therefore, the Revenue cannot withhold the relief granted by the Commissioner (Appeals) by raising the issue of unjust enrichment. He further submits that the order dated 20.02.2019 has not been stayed by any higher Court and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Tribunal is stayed or set aside the same is binding on the lower authorities. 6. On the other hand, Ld. AR reiterated the findings of the impugned order. 7. After considering the submissions of both the parties and perusal of the material on record, I find that the order of the Commissioner (Appeals) dated 20.02.2019 allowing the appeal of the appellant by holding that exemption of CVD under Notification No. 30/2004-CE dated 09.07.2004 is available to the appellant and he has allowed the appeal with consequential relief and the said decision has not been challenged by the Revenue and thus attained finality. Further, I find the refund has been rejected primarily on the ground of unjust enrichment. 8. Further, in the appellant's own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in the case of Yamuna Gases & Chemicals Ltd (supra), this Tribunal nas observed that as the Invoice itself clearly shows that the appellant has not recovered duty from the buyers and the buyers have not paid duty, therefore, the appellant has passed the bar of unjust enrichment. 10. Further, we take note of the fact that the decision of Hon'ble Bombay High Court in the case of Sandvik Asia Ltd. (supra), wherein the Hon'ble Bombay High Court has observed as under:- "4. On perusal of the Impugned order and considering the arguments of both learned counsel, we are unable to agree with Mr. Kantharia. The Tribunal was not concerned with the treatment given to the amount and as deposited in the Assessee's profit and loss. a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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