AGK AGK AGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO.206 OF 2008 The Commissioner of Central Excise, Pune - II Commissionerate ..Appellant. V/s. M/s./Ambika Cement Pipes & Allied Products ..Respondents. Mr.A.S. Rao for the appellant. CORAM : D.K. DESHMUKH & J.P. DEVADHAR, JJ. DATED : 22ND OCTOBER, 2008. P.C. : 1. The questions raised by the revenue in this appeal are : a. Whether the tribunal is justified in holding that the duty paid is a predeposit hence bar of unjust enrichment not applicable ? b. Whether the amounts paid during the investigation and prior to show cause notice would be in the nature of duty and hence the principles of unjust enrichment would be applicable for refund of the said amount ? 2. In this case, it is not in dispute that during the period from 1-10-1996 to 12-12-1997 the goods were cleared on payment of duty as assessed. Thereafter, during the investigation, the excise authorities prevailed upon the assessee-respondent to pay additional amount on account of transport charges which was paid on 17-12-1997. In the adjudication proceedings, the revenue could not establish that the assessee had not collected transport charges from its customers and, therefore, the amount deposited by the respondent during the investigation proceedings became refundable. However, the refund was denied on the ground that the assessee failed to establish that there was no unjust enrichment. The tribunal held that the amount deposited during the course of investigation being predeposit and the revenue could not establish that the assessee had recovered transport charges from its customers, so as to include the same in the assessable value, the assessee cannot be denied the refund. 3. In these circumstances, the decision of the tribunal being based on facts, the questions raised cannot be said to be substantial questions of law arising from the order of the tribunal. Hence, rejected. D.K. DESHMUKH, J. J.P. DEVADHAR, J.