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TMI Blog2010 (9) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... (J) and Hon'ble Mr. B.S.V. Murthy, Member (T) Shri Uday Joshi, Adv. for the Appellant. Shri Avinash Thete, SDR for the Respondent. Per: Mrs. Archana Wadhwa: Both the appeals are being disposed off by a common order as they relates to same set of proceedings. 2. The assessee is engaged in manufacture of product calls as Patta Patti . During the period 1980 to 1986, when a doubt regarding correct classification of the same arose, the assessee claimed classification under Tariff Item 26AA(i) of erstwhile Tariff upto 31.7.83and under heading 25(8) w.e.f. 1.8.83 to 28.2.86 and under Chapter Heading No.72.08 of Central Excise Tariff Act, 1985 thereafter. Finally, in the year 1991, the Assistant Commissioner, after taking int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -IV/SMB/WZB/MUM/2007, dt.5.1.07, vide which Revenue s appeal was allowed. Being aggrieved with the said order of the Tribunal, the appellant challenged the same before Hon'ble High Court of Gujarat. The Hon'ble High Court vide its order dt.16.10.08 observed that inasmuch as the Revenue s appeal was heard by Tribunal on 7.6.04 and the matter was decided on 5.1.07, the same cannot be upheld. Accordingly, the said order of the Tribunal was set aside and the matter was remanded to Tribunal for de-novo decision. This is how the Appeal No.E/2552/2002 stand listed before us for disposal. 5. Appeal No.E/1018/2008 stand filed by the appellant M/s Ashish Metal Rolling Mills. It is seen that after Commissioner (Appeals) vide his earlier order dt.26. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng against the assessee on the point of limitation, for the period prior to 1.10.83, the matter stand settled as tax appeal filed by them against such order of Commissioner (Appeals) before Hon'ble High Court, stand rejected. In view of the submissions from both sides, we find that the issue required to be decided in the present appeal is as to whether the claim of refund for the period after 1.10.83 is hit by unjust enrichment or not. 8. We find that the Commissioner (Appeals) while dealing with on the aspect has observed as under: 6. As regards the question of unjust enrichment, the appellant have submitted a certificate of Chartered Accountant, certifying the burden of incidence of duty has not been passed on to other persons by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onus is on the assessee to discharge the burden by producing sufficient evidence on record and not the other way as held by the Commissioner (Appeals). As is seen from the above reproduced portion of the Commissioner (Appeals) s order, he has simply gone by the certificate of Chartered Accountant and on the basis of the assumption that the Chartered Accountant must have seen the relevant records. Learned advocate submits that the goods were being sold on the basis of Per Metric Tonne (PMT) value and the duty element is also Per Metric Tonne. As the duty has not been separately shown in the invoices, the same would be to the effect as if no separate duty is being charged by them from their customers. On the other hand, learned SDR submits th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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