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TMI Blog2012 (3) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... rises that whether Tribunal was justified in holding that there is no unjust enrichment thereby entitling the assessee for refund of the duty paid under protest on input.Tribunal is directed to draw up a Statement of the case and refer the above question for decision by this Court. - CER.No. 1 of 2010 - - - Dated:- 2-2-2012 - MR.JUSTICE C.N.RAMACHANDRAN NAIR, MR. JUSTICE BABU MATHEW P.JOSEPH, JJ. For Appellant: SRI.JOHN VARGHESE,SR. SC, CEN.BOARD OF EXCISE For Respondent: SRI.JOSEPH KODIANTHARA (SR.), SRI.JOY JOSEPH(KOTTAYAM), SRI.V.ABRAHAM MARKOS, SRI.MATHEWS K.UTHUPPACHAN, SRI.BINU MATHEW, SRI.TERRY V.JAMES, SRI.B.J.JOHN PRAKASH, SRI.TOM THOMAS (KAKKUZHIYIL) J U D G M E N T Ramachandran Nair, J This i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 35H for the reason that the question involves valuation of the goods. The contention is that the issue raised is regarding valuation of goods and so much so no reference is maintainable u/s 35H and the remedy for the department is to file an appeal to the Hon'ble Supreme Court under Section 35L. However, the Standing Counsel submitted that valuation of goods is not involved in this case and the issue raised is only whether respondent is entitled to refund of duty paid under protest which they are eligible, only if there is no unjust enrichment. The point specifically canvassed by the respondent's counsel is that unjust enrichment has to be considered with reference to the value of product sold and so much so valuation is involved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chment. In this case, the conceded position is that final product is sold at market price which is same for all products manufactured and sold by every manufacturer. In this situation, it is the duty of the assessee to prove that market price at which they sold the product does not include duty on input paid under protest. In this context the correctness of the decision rendered by the Tribunal calls for examination by this Court. We, therefore, feel that the appellate order of the Tribunal gives rise to substantial question of law for our decision. We feel a comprehensive question will cover every issue and therefore we redraft the question as follows. 6. The question to be referred is as follows. Whether on the facts and in the circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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