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TMI Blog2011 (5) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... Dated:- 18-5-2011 - Mr. S.S. Kang, Mr. P.R. Chandrasekharan, JJ. Shri A.K. Prasad, Authorised Representative (Jt. CDR), for appellant Shri C.M. Sharma, Consultant, for respondent Per: S.S. Kang Heard both sides. 2. The respondent filed miscellaneous application under Rule 41 of the CESTAT (Procedure) Rules, 1982 asking for direction to grant refund. As the appeal is being taken up for hearing, the application is dismissed as infructuous. 3. The Revenue filed this appeal against the impugned order passed by the Commissioner (Appeals). The Commissioner (Appeals) has held that the provisions of principles of unjust enrichment as introduced w.e.f. 13.7.2006 in Section 18 of the Customs Act are not applicable on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the refund arising out of the provisional assessments getting finalised after the amendment to the provisions of Customs Act. It is also submitted that the judgment of the Bombay High Court has been upheld by the Hon ble Supreme Court reported in 2004 (164) ELT A177 (SC). The Revenue also relied upon the decision of the Tribunal in the case of CCE, Ahmedabad vs. Hindalco Industries Ltd. reported in 2007 (215) ELT 113 (Tri.-Ahmd.) wherein the Tribunal in a case where the assessments were finalised after the amendment held that the principles of unjust enrichment are applicable. Relying upon the above decisions, the contention of the Revenue is that, on the facts of the present case, as the assessments were finalised after the amendment to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issue before the Hon ble Gujarat High Court s decision in the case of CC vs. Hindalco Industries (supra) was whether the Tribunal was justified in holding that refund claim of respondent-importer could not be rejected by applying the provisions of unjust enrichment on the ground that principle of unjust enrichment is not applicable to the refund arising on finalisation of provisional assessment. From the facts of that case we find that the assessments were finalised prior to the amendment of Section 18 of the Customs Act. In the present case we find that the assessments were finalised after the amendment and therefore the ratio of the above decision is not applicable on the facts of the present case. In the case of Tribunal s larger bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief is sought, he has not passed on the burden on consumers and if such relief is not granted, he would suffer loss . In view of the above decision, we find that the finding of the Commissioner (Appeals) that in the present case the principles of unjust enrichment are not sustainable is set aside. 11. During the argument, the respondent submitted that they had produced all the relevant documents to show that burden of duty has not been passed on. From the reading of the adjudication order as well as the order passed by the Commissioner (Appeals), we find that the authorities below have not gone into the issue in the perspective. In view of this, we find that the matter requires reconsideration on this issue by the adjudicating autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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