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2008 (2) TMI 750 - AT - Central Excise
Issues:
1. Applicability of the principle of unjust enrichment in cases of captive consumption. 2. Examination of the claim based on balance sheet and chartered accountant's certificate. 3. Interpretation of Section 11AB(2)(c) of the Central Excise Act, 1944. Analysis: 1. The appeal was filed by the Department challenging the reliance on a decision by the Hon'ble High Court of Bombay in a case which was subsequently reversed by the Hon'ble Supreme Court. The Department argued that in cases of captive consumption, the principle of unjust enrichment applies, and the burden to prove otherwise lies on the claimant. However, the Tribunal noted that the respondents should be given an opportunity to demonstrate that they have indeed borne the excise duty and not transferred it to others. The respondents submitted a balance sheet and a certificate from a chartered accountant for examination by the original authority. 2. The advocate for the respondents highlighted that the refund was based on the non-availment of proforma credit under Rule 56A, and therefore, the claim should be assessed in light of the non-applicability of the principle of unjust enrichment as per Section 11AB(2)(c) of the Central Excise Act, 1944. The Judge disagreed with the objection raised by the JDR regarding the timing of this reference, stating that legal issues can be raised at any stage. Consequently, the Tribunal set aside the previous order and remanded the matter for a fresh examination by the Original Authority, directing a thorough review of both grounds raised by the respondents. 3. The Tribunal emphasized that the original authority must provide the respondents with a fair hearing and evaluate their plea regarding the inapplicability of the principle of unjust enrichment under Section 11AB(2)(c). If the original authority deems the principle applicable, the claim based on the balance sheet and the chartered accountant's certificate should be scrutinized. The Tribunal instructed the original authority to consider all aspects of the case and issue a fresh order based on a comprehensive examination of the facts presented. Ultimately, the Department's appeal was allowed on the terms outlined in the judgment.
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