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TMI Blog2011 (9) TMI 596X X X X Extracts X X X X X X X X Extracts X X X X ..... has been passed on to the customers and compare it with the duty amounts that has been paid and only that amount which has not been passed on to the customers and which has been borne by the assessee is liable to be refunded. Certificate by Chartered shall not be conclusive. - E/903/2009 & E/21/2010 - Final Order Nos. A/339-340/2011-WZB/C-IV(SMB) - Dated:- 13-9-2011 - Shri P.R. Chandrasekharan, J. Appearance: Ms. Anjali Hirawat, Advocate for the assessee. Shri Sanjay Kalra, Authorised Representative for the Revenue There are two appeals, one filed by the Revenue and the other filed by M/s. Finolex Cables Limited. Since both the appeals pertain to the same issue they are being taken up together for consideration and dispo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke credit of the refund amount in the CENVAT account vide order dated 15/01/2009. Against the said order, the appellant filed an appeal before the Commissioner (Appeals) praying for interest on the delayed refund for the period from 29/11/2002 to 18/02/2009 in terms of Section 11BB of the Central Excise Act, 1944 vide appeal dated 16/04/2009. 2.2. The learned Commissioner (Appeals) vide Order-in-Appeal No: PI/VSK/120/2009 dated 07/05/2009 remanded the matter to the adjudicating authority on the ground that the said authority has not recorded any finding on the question whether the duty paid was shown as an expenditure or not in the profit and loss account for the relevant financial period. The assessee is in appeal against the said or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d claim, interest should be paid to them within three months from the date of filing of the original refund application i.e., w.e.f. 29/11/2002 to 18/02/2009 the date on which they actually took the credit In the CENVAT credit. 4. The Revenue, on the other hand, contends that the Commissioner's (Appeals) order is not sustainable as the original refund sanctioning authority has not examined the issue of unjust enrichment by reference to the sales documents which would clearly indicate whether duty burden has been passed on or not. 5. I have carefully considered the submissions. 6. The Commissioner (Appeals) has passed two orders on the same issue. In one case, he has upheld the order of the lower authority and in another case he ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund on merits. However, the Tribunal further directed that the original adjudicating authority should examine the aspect of unjust enrichment before sanctioning of the refund. Therefore, the determination was left to the original adjudicating authority. In the instant case, the original adjudicating authority asked for documentary evidences for proving that the assessee has not unduly enriched themselves and evidences in that regard was submitted by the assessee only on 28/11/2008 and the refund was sanctioned on 15/01/2009. Therefore, for all practical purposes the refund application is complete only on 28/11/2008 and within three months thereafter the refund has been sanctioned and, therefore, the question of grant of any interest ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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