ORDER
P.G. Chacko, Member (J)
1. This application seeking waiver of pre-deposit and stay of recovery of an amount of Rs. 50,000/- has arisen in an appeal filed by the applicants against an order of the Commissioner sotting aside an earlier order of refund of service tax passed by the lower authority and seeking to recover the amount on the ground of unjust enrichment.
2. Ld. Counsel for the applicants, reiterating the grounds of stay application, submits that the impugned order is erroneous because, according to the applicants, the incidence of duty had, in fact, not been passed on to their customer on account of subsequent credit not having been issued to the latter Ld. Counsel in this connection relies on the decision of this Tribunal in L & T Sargent & Lundy Ltd. v. CCE, Vadodara [2002 (49) RLT 495] as also on the decision in Thermon Heat Tracers Ltd. v. CCE, Pune [2001 (132) E.L.T. 455 (T) = 2001 (45) RLT 85]. Ld. Counsel pleads strong prima facie case on the strength of the cited case law. Ld. Counsel also pleads financial hardship and invites our attention to Annexure A to the application. Ld, DR opposes this application on the strength of the findings of the adjudicating authority.
3. We have considered the submissions. We take judicial notice of the fact that the question whether a credit note issued by refund-claimant to his customer subsequent to the passing of the burden of duty on the goods from the former to the latter would be a valid consideration under Sec. 11B of the Central Excise Act for purposes of deciding whether the bar of unjust enrichment would apply to the refund claim has been referred to Larger Bench of the Tribunal by a 2-Memner Bench which has doubted the correctness of the co-ordinate Bench decision in Thermon Heat Tracers Ltd. case (supra). Hence, there appears to be no strong case for the present applicants on merits. As regards financial hardships, we do not find any valid evidence thereof in this application. We also find that the amount is too small to merit consideration on the ground of financial hardships. No prima facie case having been found on either counts, the application is rejected. We direct that the amount be deposited within a period of eight weeks from today and compliance thereof be reported on 1-8-2002.