Decided on March 19,2015

B.D. Industries Appellant
Cce, Mumbai -Ii Respondents


- (1.)M.V. Ravindran, Member (J)
(2.)THIS appeal is directed against Order -in -Appeal YDB/508/M -11/2011, dated 3 -5 -2011. Heard both sides and perused the records.
The issue involved in this case is regarding refund of an amount of Rs. 1,64,590/ - The appellant had deposited the said amount as per the direction of this Tribunal vide Stay Order No. S/232/2007/C -I/EB, dated 27 -3 -2007 for hearing and disposing of the appeal. This Bench vide order No. A/82 -83/2010/EB/C -I, dated 11 -3 -2011 has set aside the order of the Commissioner of Central Excise (Appeals) and allowed the appeal of the appellant. Consequent to such an order, the appellant filed a refund claim of the amount which has been deposited. The adjudicating authority allowed the refund claim and sanctioned refund to the appellant. On an appeal filed by the Revenue, the first appellate authority has set aside the impugned order and held that the appellant is not eligible for the refund. First "appellate authority has held that doctrine of unjust enrichment will apply in the case.

(3.)LEARNED Counsel would bring to my notice the factual matrix of the appeal was being heard by the first appellate authority. The appellant here -in while appearing for personal hearing before the first appellate authority on 22 -2 -2011, had produced the Chartered Accountant's certificate which indicated that the amount for which refund claim was filed, the amount was not debited to Profit and Loss Account as expenses. It is his submission that the first appellate authority has not disputed the certificate in the impugned order. He would submit that the amount has not been expensed of and is still outstanding as receivable from the department.

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