Per Archana Wadhwa : The brief facts are contained in para 1 of the order of the original adjudicating authority, which for convenience are being reproduced below:-

"M/s Arvind Enterprises filed Bills of Entry No. 8837 and 8725 both dated 25.2.97 for import of 19.4 MT and 19.2 MT of C.A. off cuts respectively. Both these Bills of Entry were assessed on 2nd check appraisement and the importer paid duty of Rs.2,95,777/- and Rs. 2,92,729/- vide cash no. 4889 and 4901 dt. 14.3.97 respectively. Thereafter, they received intimation from their supplier that the consignments actually shipped were 4.56 MT and 5.02 MT of CA. Scrap instead of C.A. off cut. The Deptt. got the aforesaid facts verified and re-assessed the consignments on 13.6.97 after adjudication by the Deputy Commissioner of Customs and imposition of RF of Rs.10,000/- and penalty of Rs.5,000/- on each consignments vide Order-in-Original No. S/26(R)76/97 GR.2B dt. 01.05.98. The adjudication was necessary since the importer did no possess a specific Import Licence for clearance of C.A. scrap. The duty payable in scrap was Rs.30,235/- and Rs.33,286/- respectively and the said amounts were adjusted from the duty originally paid by them. The importer filed a Refund application on 14.10.97 for excess amount paid against the C.A. off cuts."

2. It is seen from the above that the dispute in the present appeal is as to whether refund filed by the appellant is to be barred by limitation or not. The said dispute was adjudicated by the Assistant Commissioner of Customs, who held in favour of the assessee by observing as under:-

"I have carefully gone through the case record and the submission made by the importer during the course of personal hearing. The question to be decided is whether limitation of six months applies where recovery of duty is without jurisdiction. So far as payment of duty on 14.03.97 is concerned, the situation is clear. The party had paid duty thinking the imported goods to be C.A. off cut. On verification they turned out to be C.A. scrap. Hence, C.A. off cuts never arrived in India under Section 2(23) of the Customs Act, 1962. Since the goods were not imported, no duty is chargeable u/s 12 of the Customs Act, 1962 and by same logic, assessment under Section 17 of Customs Act, 1962 was illegal. The importer had paid the amount which was not payable under the Customs Act, 1962 i.e. it was mistakenly paid without any of the provisions of the Act.

In view of the aforesaid case, it appears to be well settled that in present case too, limitation of six month is not applicable regarding filling of refund claims, when goods (C.A. off cuts), for which importer had paid duty, did not arrive in India. Further, unjust enrichment provisions also don't apply for same reason as when C.A. off cuts did not arrive into India, there is no question of Importer passing on burden of duty to any other person for simple reason that goods were never sold."

Accordingly, refund of Rs. 5,24,987/- was sanctioned as excess amount paid by the appellant and was actually given to the appellant.

3. The above order of the Assistant Commissioner was appealed against before the Commissioner (Appeals), who reversed the same and held that as the refund claim was filed after a period of six months, the same was clearly hit by time bar. The said order of the Commissioner (Appeals) is impugned before us.

4. After hearing both the sides, we find that admittedly the appellants' liability to pay duty on the imported goods, was finally adjusted by the department on 13.6.97. In the adjudication order, it was clearly held that the duty payable on the scrap was being adjusted from the duty originally paid by the appellant. As such, it can be concluded that the refund of excess amount paid by the assessee was due to them as consequence of the adjudication order. The use of expression adjusted also indicates that the excess deposits are required to be refunded. In any case, the appellant had filed the refund appl