2006 (2) TMI 549

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..... rtment sought to classify the product under 8479.89. Pending the dispute the appellants deposited the duty payable on such goods sought as classified by the department, and took up the matter of classification in the higher forum. The Commissioner (Appeals) upheld the claim of the appellants' product under Chapter 8437.90. The said appeal stands finalized. Subsequent to the Order-in-Appeal in their favour the appellants preferred a refund claim of the duty paid. The said refund claim was rejected by the adjudicating authority on the ground that the appellants have not proved by substantial documentary evidence that incidence of duty has not been passed on by them. On appeal, the Commissioner (Appeals) has also come to the identical findings .....

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..... tomers indirectly. He submits that the provisions of Section 28D are to be rebutted by the appellants which was not done so in this case inasmuch as that there is no clear evidence which have been provided by the appellants. He relies upon the case law of ONGC v. CCE, Kanpur - 2003 (156) E.L.T. 794 (Tri.-Del.) which was upheld by the Hon'ble Supreme Court reported in 2004 (163) E.L.T. A207 (S.C.). He also relied upon the decision in the case of Wool Worth (India) Ltd. v. C.C. (Port), Kolkata - 2005-TIOL-847-CESTAT-Kol. He strongly relied upon the decision in the case of UOI v. Solar Pesticides Pvt. Ltd. - 2000 (116) E.L.T. 401 (S.C.). 5. Considered the submissions made by both sides and perused the record. It is not in dispute that th .....

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..... den on consumers and if such relief is not granted, he would suffer loss. In view of the above decisions of the Hon'ble Supreme Court we answer the question of law referred of the Larger Bench in favour of the Revenue by holding that the doctrine of unjust enrichment is applicable to the imported capital goods used captively consumed for the manufacture of excisable goods. A contrary view taken by the Tribunal in the case of Grasim Industries (supra) is not good law hence overruled." The Larger Bench at Para 11 has also held as under :- "The appellant in the grounds of appeal challenged the impugned order on the ground that they are provided documentary evidence i.e. sales invoices prior and after import to show that sale price of goods r .....

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