2009 (8) TMI 1147 - AT - Customs

Summary

Issues involved: Appeal against appellate Commissioner's order, jurisdiction under Section 128 of the Customs Act, remand to original authority, unjust enrichment, application of mind by appellate Commissioner.

Jurisdiction under Section 128 of the Customs Act:
The appeal before the Appellate Tribunal CESTAT MUMBAI was against the appellate Commissioner's order-in-appeal. It was noted that the appellate Commissioner had exceeded his jurisdiction under Section 128 of the Customs Act by remanding the case to the original authority. Both the Revenue's learned DR and the assessee's counsel agreed that the Commissioner should have decided the appeals on merits instead of remanding the case.

Unjust Enrichment Issue:
The Commissioner (Appeals) had passed an open remand order directing the lower authority to decide on grounds of unjust enrichment. The order highlighted that the amount claimed as refund had not been charged to any revenue expenses or reflected as depreciation in the Company's Profit and Loss account. It was also mentioned that the bar of unjust enrichment did not apply to the appellant, and the burden of duty was not passed on to their customers. However, the Tribunal found contradictions and inconsistencies in the Commissioner's order, leading to a remand for a fresh decision on all issues with better application of mind.

Application of Mind by Appellate Commissioner:
The Tribunal observed that the appellate Commissioner's order contained contradictions and inconsistencies, necessitating a remand for a fresh decision with better application of mind. The impugned order was set aside, and the appeals were allowed by way of remand, ensuring that the appellants would be given a reasonable opportunity to be heard.