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2008 (4) TMI 630

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..... uld be entitled to take the amount in PLA as a consequence of their appeal being allowed by the Tribunal, since the Modvat Scheme is not available on hot re-rollable products and therefore, payment in RG 23A Part II would not amount to any benefit or relief to the appellants, we hold that the appellants will have to satisfy the Assistant Commissioner regarding non-passing of duty burden during the period covered by the appeal namely 1994-95. The Assistant Commissioner is directed to satisfy himself with the evidence that may be adduced before him as to whether the doctrine of unjust enrichment would be applicable i.e. whether the appellants have passed on the duty burden to their customers during the period in question and if he is satisfie .....

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..... the case of Solar Pesticides [1992 (57) E.L.T. 201 (Bom.)] which was overruled by the Hon ble Supreme Court [2000 (116) E.L.T. 401 (S.C.). He further submits that the Appellants failed to discharge the burden of proof of unjust enrichment. 7. After hearing both the sides and on perusal of record, I find that the Adjudicating Authority in compliance of the Tribunal s order held that the duty was not passed on to any other person. It is seen that the Adjudicating Authority examined the various evidences and reports. The relevant portion of the finding of the Adjudicating Authority is reproduced below- I have carefully gone through the facts of the case, the submission made by the party, the contents of the affidavit submitted by the part .....

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..... oner (Appeals) on merits of the case is beyond the remand order of the Tribunal, which is not permissible under the law. 11. I find that Commissioner (Appeals) has not disputed the Affidavit, Chartered Accountant Certificate and the report of the Jurisdictional Central Excise officers and, therefore, the observation of The Commissioner (Appeals) is not sustainable. The Tribunal in the case of R.C.C. (Sales) Pvt. Ltd. (supra) held that burden of duty whether passed on to the customers, Chartered Accountant certificate has to be accepted. 12. In view of the above discussion, I find that the order of the Commissioner (Appeals) is not acceptable and accordingly, it is set aside. The order of the Adjudicating Authority is restored. The appea .....

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