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TMI Blog2024 (12) TMI 1470X X X X Extracts X X X X X X X X Extracts X X X X ..... g with other issues and has given detailed findings on each issue. Since the Commissioner (Appeals) has given reasoned findings as per law and there are no infirmity in the impugned order passed by the Commissioner (Appeals) therefore the impugned order is upheld by dismissing the appeal of the Revenue. Appeal of Revenue dismissed. - MR. S. S. GARG, MEMBER (JUDICIAL) Shri Anurag Kumar, Authorized Representative for the Appellant Shri Sudeep Singh Bhangoo, Advocate for the Respondent ORDER The present appeal filed by the Revenue is against the impugned order dated 09.06.2023 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has allowed the appeal of the respondent and set aside the Order-in-Original. 2. Briefly the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellant deposited the duty. Aggrieved by the Order-in-Original, the appellant filed appeal before the Commissioner (Appeals) and the Commissioner (Appeals) vide order dated 28.05.2020 allowed the appeal of the respondent. Thereafter, the appellant filed the refund application seeking refund of the amount deposited by them. The Refund Sanctioning Authority vide Order dated 17.05.2021 sanctioned the refund claim but instead of crediting into account of the respondent transferred to the Consumer Welfare Fund in accordance with the provisions of Section 27(2) of the Act. Aggrieved by the said order, respondent filed appeal before the Commissioner who, vide the impugned order, has allowed the appeal of the respondent and set aside the Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Commissioner (Appeals) has rightly considered all the issues involved and has categorically given detailed findings based on the decision of the Courts. He further submits that the Revenue, in the present appeal, has not taken the ground of unjust enrichment. He further submits that the amount involved in the present case is only Rs.16,35,238/- which is below the monetary limit prescribed for filing the appeal by the Department. 6. After considering the submissions of both the parties and perusal of the material on record, I find that the original authority has sanctioned the refund but credited the same to the Consumer Welfare Fund by invoking the principle of unjust enrichment whereas the learned Commissioner has considered this i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of India under Chartered Accountant Act, 1949 and C.A's certificate supported by other corroborative evidence like balance-sheet and calculation of amount, etc. not to be brushed aside - Assessee eligible to refund of amount - Section 11B of Central Excise Act. 1944. 4.12 Reliance is also placed on the judgment of Hon'ble CESTAT, Ahmedabad in the case of Afcons Infrastructure Ltd. Versus Commissioner of C. EX. S.T., Daman reported at 2015 (329) E.L.T. 390 (Tri. Ahmd.) Hon'ble CESTAT held that Refund Unjust enrichment - Bar of Incidence of duty whether passed on to customers- Assessee submitted CA's certificate that no part of duty paid by manufacturer reimbursed by customer. Nuclear Power Corporation Ltd. Similar certific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Refund Unjust enrichment bar not applicable for refund of redemption fine and penalty deposited at the time of clearance of goods from Customs which was also treated as pre- deposit for filing appeal before Tribunal as the said deposit was not during ordinary course of business - Section 27 of Customs Act, 1962. 4.14 Reliance is also placed on the judgment passed by Hon'ble CESTAT, Mumbai in the case of Commissioner of Customs(Import), Mumbai Vs Agro Impex reported at 2014 (307) E.L.T. 371 (Tri. - Mumbai) Refund claim of penalty and redemption fine Bar of unjust enrichment Applicability - HELD: As per documentary evidence produced in form of Chartered Accountant's certificate and balance sheet clearly mentioning refund amount as rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t duty charged was not a duty and was charged without authority of law. Once, it is proved that excess duty charged was not a duty, the provisions of Section 27(2) of the Customs Act, 1962 are not applicable in this casc 4.17 I find that the adjudicating authority in its order relied upon a draft circular issued by CBEC, New Delhi vide F No. 137/29/2016-Service Tax, wherein the principle of unjust enrichment in the cases of refund has been discussed in detail I find that impugned OIO was passed on 17.05.2021 and as per adjudicating authority's view, the said circular was still draft circular at that time and means no final circular was issued till the date of issuance of impugned 010 Further, search made on the CBIC website revealed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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