2023 (2) TMI 623

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....llant thereafter, imported rice polisher machine with spare parts and colour sorter machine, against these scrips vide the Bills of Entry during March 2012 to August 2013. By using the Agri Infrastructure Incentives Scrips the Appellant saved duty of Rs. 10,78,050/-. 3. That in August 2015, DRI Ludhiana Zonal Unit started investigation in the matter of aforementioned import of machinery by use of the incentive scrips. On the direction of DRI, the Appellant deposited Rs. 6,81,304/- vide demand draft dated 02.03.2017. Thereafter, show cause notice dated 09.03.2017 was issued alleging that the machinery goods were not qualified for import under the subject scrips. Show Cause Notice was adjudicated on contest and vide Order-in-Original dated 0....

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.... the learned Commissioner (Appeals). It was urged that the machines imported being capital goods and not raw materials, no such machines are sold by way of trade, hence, there was no occasion to pass on the custom duty paid at the time of import. Further, the amount was paid under protest as they had deposited during investigation and also during pendency of the appeal. No unjust enrichment is attracted when the amount has been deposited after out of charge was given, more than 2 to 3 years after import. Further, as the Appellant have contested the demand, the payments were made under protest, ipso facto. Accordingly, on such payment/deposit the clause of unjust enrichment is not attracted they relied on the ruling in the case of Commission....

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.... during investigation, the High Court relied upon the ruling of Hon'ble Supreme Court in the case of Union of India vs. Suvidhe Ltd. 1997 (94) E.L.T. A159 (S.C.). The Apex Court have held that unjust enrichment is not attracted where amount is deposited during investigation and pendency of appeal, as such deposits are under protest or in the nature of pre-deposit. Accordingly, he prayed for allowing the appeal with consequential benefits. 9. Learned AR for revenue Mr. Gopi Raman relies on the impugned order. 10. Having considered the rival contentions, I find that the order of court below is erroneous and in the teeth of the ruling of Hon'ble Supreme Court in the case of Suvidhe Ltd (supra). Admittedly, the amount under refund claim were ....