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TMI Blog2009 (4) TMI 712X X X X Extracts X X X X X X X X Extracts X X X X ..... hem in the manufacture of HDPE tapes. A dispute about classification of HDPE tape arose between the appellant and Revenue in or around in the year 1986 onwards till March 1992. The said dispute was settled in favour of the assessee, thus resulting in their claim of refund of duty paid during the relevant period. Such refund was sanctioned by the original adjudicating authority but transferred to Consumer Welfare Fund. However, on an appeal against the above order, Commissioner (Appeals) held in favour of the assessee. The said order of Commissioner (Appeals) was appealed against by Revenue before Tribunal, who remanded the matter for re-consideration in the light of the Supreme Court decision in case of M/s. Solar Pesticides Pvt. Ltd. repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 (S.C.), clearly gave the verdict that unjust enrichment means passing not only of duty directly to another person but also when passed indirectly, duty paid on raw material when added, to price of finished goods, incidence of duty considered to have been passed. It was clearly held in this landmark judgment that the principle of unjust enrichment applies to captive consumption also. I am surprised how the guide-lines set by the Supreme Court of India in the above mentioned case was not taken into account. I also find that the Assistant Commissioner, vide Order-in-original No. 05/AC/REF/2008, dt. 30-4-08 has sanctioned an interest amounting to Rs. 44,28,444/- to the Respondent, quoting the case-laws, one of Allahabad High Court and another ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner (Appeals), they were within their right to challenge the same before Tribunal. Having not done that and having allowed the Commissioner (Appeals) s order to attain finality, it is not open to the authority to judge the correctness of the same in subsequent proceedings relating to the appellant s claim of interest. By holding that refund itself was not sustainable, the Commissioner (Appeals) has ousted his jurisdiction and has acted as if he was sitting in the appeal over earlier appeal of Commissioner (Appeals). 6. In view of the above, we set aside the Commissioner (Appeals) s order and remand the matter to Commissioner (Appeals) for fresh decision in the light of grounds raised by Revenue in their memo appeal. 7. Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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