2003 (12) TMI 494

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..... . - None has come present on behalf of the respondents in spite of service of notice on them for today's hearing. No request for adjournment has been also received from them. Therefore, I proceed to decide the appeal on merits after hearing the learned JDR. 2. The Revenue in this appeal had made challenge to the impugned order-in-appeal vide which the Commissioner (Appeals) has reversed th .....

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..... ecord shows that the respondents filed the refund claim on account of differential duty paid by them under protest for the clearances effected by them during the period April to August, 1990 on account of dispute regarding the classification of their iron & steel products. The adjudicating authority rejected the refund claim by applying the principle of unjust enrichment, but that order was set as .....

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..... ving that the principle of unjust enrichment, was not attracted to the case of the respondents for having paid the duty under protest. He has sought support for passing this order from the ratio of the law laid down in the case of Sinkhai Synthetics & Chemicals Ltd. v. CCE, Aurangabad 2002 (143) E.L.T. 17. 5. In my view, the learned Commissioner (Appeals) could not legally take such a view f .....

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..... ra, the Apex Court has observed that "mere non-mention of the duty element separately in the invoices by an assessee did not lead to any conclusion that he had not passed on the incidence of duty to the consumer." The Apex Court has rather observed in para 76,"that preparation of the invoices is always in the hands of an assessee and no manufacturer would offer the sale of its product at loss. The .....

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..... unal. Moreover, it is not a case where the duty was paid under protest on account of provisional assessment in terms of Rule 9(b) of the Rules, so as to attract the ratio of the law laid down in the case of Sinkhai Synthetics & Chemicals Ltd., supra, relied upon by the learned Commissioner (Appeals). 7. In view of the discussion made above, the impugned order of the Commissioner (Appeals) is .....

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