TaxTMI 
TaxTMI 
2006 (4) TMI 390
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....the bar of unjust enrichment was not applicable. He also held that the interest was not payable from the date of issue of OIAs ordering refund of the said amount paid. Revenue is aggrieved over the impugned order and therefore, filed this appeal. 3. The main contention of the Revenue is that the amount deposited by the Respondents is not that of pre-deposit made to avail the right of appeal but of an amount deposited during the course of investigation towards the probable differential duty. The case laws relied on by the Commissioner (A) relate to the pre-deposit made for availing the right of appeal under Section 35F of the Central Excise Act or Section 129E of the Customs Act. Those decisions will not be applicable to the present case. The initial payments were made during investigations of a case booked by the DRI towards differential duty likely to arise after adjudication of the case. Thus, it is very much clear that the amount paid is only duty and not pre-deposit as opined by the learned Commissioner. Hence, the refund has to pass through the test of unjust enrichment prescribed under Section 127(2)(a) of the Customs Act 1962. Further, the Commissioner for his decision re....
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....e payment of interest which can be made only under the provisions of Section 27A is not applicable in the present case. The claim for refund by the Respondent is incomplete in the absence of necessary proof to be submitted by him to the proper officer of Customs to show that the incidence of date had not been passed on to any other person. As such payment of interest does not arise. 5. In the case of M/s. Mafatlal Industries Ltd. v. UOI - 1997 (89) E.L.T. 247 (S.C.), the Hon'ble Supreme Court has held that all claims for refund have to be preferred under and in accordance with the relevant provisions of the respective enactments before the specified statutory authorities and within the prescribed limitation - Customs Act, Section 27. As such the order of Commissioner of Customs in their OIO No. 11/2004, dated 27-2-2004 and Order dated 6-10-2003 cannot be termed as refund order as held by the Commissioner (Appeals). 6. Shri K. S. Reddy, learned JDR, who appeared for Revenue, reiterated the grounds of appeal. 7. Shri S. K. Choudhury, Consultant appeared for the Respondent and urged the following points. (i) Supreme Court judgment in the case of ITC and Others - 2005....
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....peal No.45/05 from expiry of 3 months from the date of filing the refund claim. The Respondent has filed Memorandum of Cross Objection against this portion of the Commissioner's order. (viii) Respondent has submitted certificate dated 3-4-2006 from a Chartered Accountant who has certified that the Respondent had not passed on the incidence of the said sums deposited in May 2001 to its customers or any other persons. 8. We have gone through the records of the case carefully. Revenue has filed an appeal against the impugned order of the Commissioner on the following points. (i) Applicability of unjust enrichment with regard to amounts deposited during the course of investigation of a case. (ii) Grant of interest for refund claimed by the Respondents. 9. The refund amount due to Respondent arise consequent to the following developments. The DRI, Bangalore undertook investigation into fulfilment of the Respondent's export obligation in respect of certain advance licenses. DRI informed the Respondent about certain short fall in their export obligation on account of certain shipping bills logged in the DEEC book more than once. In view of the anticipated ....
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....58,312/- along with interest. This refund arose consequent to order dated 6-10-2003 issued by the Commissioner of Customs, Bangalore on the directions issued by the Customs and Central Excise Settlement Commissioner, Chennai through Final Order dated 8-9-2003. 10. It is clear that the Commissioner (A) dealt with two refund claims in respect of each of the appeal filed before him. The fact that the amounts were paid during investigation is not in dispute. The duty liability on the Respondents is settled consequent to Commissioner's order dated 6-10-2003 in respect of Appeal No. 44/05. But as regards Appeal No. 45/05, the Respondents filed the refund claim before the Asst. Commissioner as earlier as 9-11-2001 though the Commissioner passed his order on 27-2-2004. The point is that in respect of both the claims, the amounts were deposited during the course of investigation by the DRI. The Commissioner (A) has elaborately discussed the issues and come to the conclusion that the excess amount deposited after taking into account the duty liability determined by the Commissioner is in the nature of a deposit and therefore, the bar of unjust enrichment is not applicable. We agree with t....