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TMI Blog2011 (6) TMI 589X X X X Extracts X X X X X X X X Extracts X X X X ..... upplements. They have classified their product under CHS 2302.00 of the Central Excise Tariff Act attracting 'nil' rate of duty. The department was of the view that the said product is classifiable under CHS 2936.00 attracting Central Excise duty @ 15% basic and 5% SED. During the period 01/08/1988 to 01/11/1991 the appellant paid duty under protest classifying their product as 2936.00 as directed by the department and challenged the issue of classification. The matter reached before this Tribunal and this Tribunal by order No. 755-756/91 dated 07/10/1991 decided the classification in favour of the appellant i.e., CHS 2302.00. Consequently, the appellants filed the refund claim of the duty paid by them under protest. It is also on record th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant period which is attributable to the element of Excise Duty or any other evidence. He is at liberty to reject the claim and the credit this amount to Consumer Welfare Fund. Otherwise, the refund application can not be rejected on the grounds of unjust enrichment." 3. Thereafter the matter was considered by the adjudicating authority in the remand proceedings as per the direction of the Commissioner (Appeals). During the remand proceedings, the adjudicating authority, without following the directions of the Commissioner (Appeals), passed the same impugned order on 02/03/2000 on the basis of price-lists filed by the appellants. The said order dated 02/03/2000 was also challenged by the appellants before the Commissioner (Appeals) agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved that the prices shown in the price-lists are inclusive of assessable value, discount and excise duty. Therefore, it was held that the appellant has recovered the duty amount involved from the customers. Therefore, their refund claim was denied holding that the refund claim was hit by unjust enrichment. The same view was taken by the Commissioner (Appeals). Aggrieved from the said order the appellants are before us. 5. Shri Bharat Raichandani, Advocate, learned counsel for the appellant appeared and submitted that, in this case, it is not disputed that the Revenue cannot keep the duty paid by the appellants under protest as the issue of classification has been decided by the apex court in appellant's favour. Therefore, the appellants ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority has gone beyond the directions which is not proper. He further submitted that the appellants have submitted Chartered Accountant's certificate duly certifying that duty element has not been recovered from the buyers and an affidavit of the Director of the appellant-company that duty has not been recovered from the buyers but the adjudicating authority as well as the lower appellate authority has not considered these submissions and passed the order without any reason. On merits also, he submitted that they have not recovered any duty which is very well shown to the authorities below by producing the invoices of previous period showing no increase in price, and which has been examined thoroughly and found no duty is received from the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and law. 9. On legal issue, the learned advocate submitted that the order dated 26/11/1998 of the Commissioner (Appeals) given a clear direction to the adjudicating authority to examine the case whether the price shown in the invoices are more than the price for the previous period or not? If prices are equal or less when compared with the previous period, bar of unjust enrichment is not applicable. If prices are more than the prices of the previous year, in that case the adjudicating authority will examine whether the increase in price is attributable to duty element or not? If not, then also the refund claim is not hit by bar of unjust enrichment. The order of the Commissioner (Appeals) was specific and the adjudicating authority h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assistant Collector would have passed the order following the directions of the Commissioner (Appeals), then this matter would not have traveled before this Tribunal. 11. We have seen that the refund relates to the years 1988-91 and we are running in 2011, the adjudicating authorities are not following the directions of the Commissioner (Appeals) which amounts to total disregard and disobeyance of the direction of the Commissioner (Appeals) as held by the Hon'ble Allahabad High Court in the case of Geep Industrial Syndicate Ltd (supra). This cannot be permitted as held several times by this Tribunal as well as by the High Courts and Supreme Court that all the authorities below are bound by the decision of the higher authorities. On this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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