- (1.) Heard Shri Ashok Singh, learned Counsel for the appellant and Shri Arijit Chakraborty for the assessee. This Central Excise Appeal under Section 35-G has been filed against the judgment and order of the Customs, Excise & Service Tax Appellate Tribunal, New Delhi (hereinafter called the "Tribunal"), dated 14-8-2008 passed in Appeal No. E/2262/2006-SM(BR), dated 5-9-2008. By an earlier order of the Tribunal dated 16-1-2002, the issue of demand against the assessee was finalised reducing the demand earlier raised to the extent of Rs. 2,88,047/- only and penalty of Rs. 10,000/-. The appellant had deposited during the investigation an amount of Rs. 10,94,263. After the order of the Tribunal, the appellant submitted an application for refund of the amount which was allowed vide order dated 21-10-2004 of the Assistant Commissioner. It is submitted that a cheque for refund of the amount was prepared. Subsequently, the Adjudicating Authority sanctioned the cheque and made the payment.
(2.) Against the order of the Assistant Commissioner, Central Excise regarding refund of the claim, an appeal was filed by the department which was rejected on 12-4-2006 upholding the order dated 21-10-2004 sanctioning the refund. Against the said order the department filed an appeal before the Tribunal which has been dismissed by order dated 14-8-2008, against which the Department has come up in the appeal.
(3.) Shri Ashok Singh, learned counsel for the appellant contended that the Tribunal had only affirmed the finding of the Commissioner (Appeals) without recording its own finding on the question of unjust enrichment. The Tribunal in paragraphs 3 and 4 observed as follows: 3. After hearing both the sides and on perusal of the records, it is seen that the main contention of the ld. DR is that the refund claim is hit by principles of unjust enrichment. He submits that the Commissioner (appeals) erroneously followed the decision of the Gujarat High Court and ignored the decision of the Hon'ble Supreme Court. On perusal of the order of the Commissioner (Appeals), I find that the Commissioner (Appeals), examined the principle of unjust enrichment in the impugned order as under:-- I find that the contention of the department that the amount of Rs. 10,94,263/- was deposited by the party on their own has not been shown in the balance sheet of relevant year 1997-98 in the schedule of loans and advances to be recovered for the department is not sustainable as the party had deposited this amount under protest as an advance payment of central excise duty pending enquiry and investigation and intimated this fact to the Additional Director General of DGAE, Central Excise New Delhi vide their letter dated 6-12-1997 and has also shown in their Balance Sheet of the company for whole of the group in the relevant year 1997-98 in the schedule of "OTHER CURRENT ASSETS". 4. I find that the Revenue had not disputed the above facts of examination of balance sheet in their Grounds of Appeal. So, it is evident from the record that the Commissioner (Appeals) allowed the refund claim after examining the unjust enrichment. Hence, I do not find any reason to interfere the order of the Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is rejected.;