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TMI Blog2009 (2) TMI 677X X X X Extracts X X X X X X X X Extracts X X X X ..... -346/2009-EX(PB) - Dated:- 23-2-2009 - S/Shri M. Veeraiyan, P.K. Das, JJ. REPRESENTED BY : Shri Z.U. Alvi, Advocate, for the Appellant. Shri S.N. Srivastava, DR, for the Respondent. [Order per : P.K. Das, Member (J)]. The relevant fact of the case, in brief, are that the appellants are engaged in the manufacture of Cotton Yarn, Blended Yarn (Acrylic/Polyester) classifiable under Chapter 52 55 of the Schedule to the Central Excise Tariff Act, 1985. The appellants were selling their goods at factory gate and also through depot. They opted provisional assessment for payment of duty in respect of depot sales. The appellants filed refund claim consequent upon the finalization of provisional assessment. The original authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon ble Supreme Court in the case of Sahakari Khand Udyog Mandal Ltd. v. CCE Cus., reported in 2005 (181) E.L.T. 328 (S.C.) the doctrine of unjust enrichment would be applicable in any refund of duty. He further submits that in the instant case, the appellants failed to co-relate the goods cleared from the factory and removal from the depot and, therefore, they failed to establish that the incidence of duty has not been passed to any further person. He relied upon the decision of the Tribunal in the case of United Spirit Ltd. v. C.C. (Import), Nhava Sheva, reported in 2008 (228) E.L.T. 360 (Tri.-Mumbai). He also submits that the Commissioner (Appeals) rightly observed that in order to fulfil the doctrine of unjust enrichment, the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prevailing at depot has been lower than the price at which duty was paid by the appellant. The buyer at depot paid the duty on this lower price. Thus the excess duty paid by the appellants at the time of removal of the goods from the factory has not been recovered from the buyer. Hence, incidence of duty has not been borne by the appellants only. The Commissioner (Appeals) set aside the adjudication order, holding that the appellants failed to prove that the duty burden has not been passed on to other persons. It has been observed that the goods cleared from the factory and the goods sold from depot on a particular day are different. We are unable to accept the finding of the Commissioner (Appeals). We agree with the finding of original a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals) once the goods are cleared from the factory to the depot on payment of duty on the basis of a price prevailing at the depot, at the time of removal from the factory there is no need to chase the goods and to see at what price the same are actually sold. Therefore, he has rightly set aside the orders of the lower authority demanding duty. We do not find any reason to interfere with the orders of the Commissioner. Therefore, we dismiss Revenue s appeals and uphold the Orders-in-Appeal. The appeals and cross-objections are disposed of in the above terms. 7. The decisions cited by the learned D.R. for applicability of unjust enrichment are not relevant in this case, as the appellants fulfilled the conditions of unjust enrichment by s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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