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TMI Blog2011 (2) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... nrichment and those statements have not been found to be false or unreliable - Appeal is dismissed - 20 of 2003 - - - Dated:- 4-2-2011 - Bhaskar Bhattacharya and Sambuddha Chakrabarti, JJ. REPRESENTED BY : S/Shri N.C. Roychowdhury Sr. Advocate and K.K. Maity for the Appellant. None, for the Respondent. [Judgment per : Bhaskar Bhattacharya, J.]. This application is at the instance of the Commissioner of Central Excise, Calcutta, III under Section 35H(1) of the Central Excise Act, 1944 and is directed against an order dated 19th July, 2002 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, Eastern Zonal Bench thereby dismissing the appeal preferred by the appellant. 2. The facts giving rise to filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er s order in original. (g) The Commissioner (Appeals) by order dated 11th January, 1990 set aside the order of the Assistant Commissioner with a direction to refund the amount. (h) The Department preferred an appeal to the CEGAT against the order dated 11th January, 1990 passed by the Commissioner (Appeals). (i) The CEGAT vide order dated 24th October, 1991 ordered to refund the amount within two months from the date of receipt of the order by dismissing the appeal (j) The Department filed a reference application to the CEGAT incorporating a new point of unjust enrichment . (k) The CEGAT vide order dated 13th August, 1992 dismissed such reference and directed the Department to refund the amount within two mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal before the CEGAT which, however, allowed the appeal by setting aside the order of the Commissioner (Appeals) and allowing the refund. 3. Being dissatisfied, the Department has come up before his Court. 4. A Division Bench of this Court by order dated 19th May, 2004 framed the following question of law for the purpose of disposal of the present appeal : Whether the presumption with regard to the passing of the burden to the buyer as laid down in the ratio decided in the case of Mafatlal Industries Ltd. v. Union of India : 1997 (7) SCC 536 could be rebutted simply by production of a statement without producing the relevant records relating to the prices received by the assessee from its buyers. 5. Mr. Roychowdhury, the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arty-wise for two periods, one from November 20, 1986 to March 31, 1987 and the other from April 1, 1987 to September 15, 1987 indicating that the assessee did not add any amount even up to September 15, 1987. In other words, the price of the articles remained the same even after the period in question pointing out that nothing was added to the price although the assessee was asked to pay duty for the period which they initially paid on demand. 8. We, therefore, find that the point now sought to be urged before us by Mr. Roychowdhury by taking aid of Section 12B of the Act on the basis of onus is even not tenable as sufficient materials were placed by the assessee in support of their claim that there was no unjust enrichment and those sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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