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TMI Blog2010 (4) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... he original authority but the amount was ordered to be credited to Consumer Welfare Fund. Aggrieved, the assessee preferred an appeal to the Commissioner (Appeals) and the latter remanded the case to the lower authority for examining the issue relating to unjust enrichment. The present appeal of the department is directed against the appellate Commissioner's order. The appellant has raised 2 contentions. Firstly, the original authority had, in fact, examined the issue of unjust enrichment. Secondly, the ld. Commissioner (Appeals) had no power of remand when the impugned order was passed. 3. The ld. JDR has laid emphasis on the second ground and has relied on the Hon'ble Supreme Court's judgment in Mil India Ltd. v. Commissioner of C.Ex., N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck to the adjudicating authority for fresh consideration. Therefore, the Commissioner (A) continues to exercise the powers of the adjudicating authority in the matters of assessment……" The decisions cited by. the id. Counsel, which were rendered by relying on a judgment passed by the Hon'ble Supreme Court with reference to the preamended provisions of Section 35A, are per incuriam. The issue on hand is squarely covered by the Hon'ble Supreme Court's decision in Mil India Ltd. Accordingly, we hold that the impugned order was passed without jurisdiction and the same is set aside. 5. The next question is whether the original authority had, in fact, examined the issue of unjust enrichment. In the Order-in-Original, the last portion of the ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication No. 21/02-Cus. (Sl. No. 357) was denied by the assessing authority. Later on, there was a litigation between the party and the department, which culminated in the grant of the above benefit to the party. The refund claim was filed in this background. It appears from the records that the imported items were captively consumed by the assessee. It is their case that the amount of duty paid by them was not reckoned in the costing of the engines for purposes of income tax and that it has ever been shown as deposit with the Commissioner of Customs or, in other words, as receivable. It appears that this aspect was not properly examined by the original authority. Therefore, we are of the view that the issue of unjust enrichment should be l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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