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TMI Blog2013 (6) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... gly, rectify the said mistake and hold that whereas the Revenue's appeal No. ST/119/06 is allowed by way of remand for reconsideration of merits, Appeal No. 181/2010 is dismissed. However, we would like to make it clear that question of unjust enrichment would be relevant only if the Assistant Commissioner in denovo proceedings holds in favour of the assessee. - ROM application allowed. - ST/181 of 2010-Cus (Br) - - - Dated:- 12-4-2013 - Archana Wadhwa And Rakesh Kumar, JJ. For the Appellant : Shri R K Mathur, DR. For the Respondent : Shri P K Sahu, Adv. Per: Archana Wadhwa: Learned advocate appearing in support of the ROM application in respect of order No.ST/550-551/11 dated 14.10.11 submits that the Tribunal vide said o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there is not even a single ground challenging the finding of Commissioner (Appeals) on unjust enrichment. He submits that though the Revenue has filed an appeal against the said order but the ground of appeal nowhere related to the issue of unjust enrichment and nowhere rebutted the various evidence relied upon by the Commissioner (Appeals) in his impugned order. As such, the observations of the Tribunal that the unjust enrichment angle was not examined and should be examined in denovo proceedings are not correct. 5. Learned DR appearing for the revenue submits that very fact that the order of Commissioner (Appeals) was put to challenge by them before Tribunal itself indicates that Revenue was aggrieved with the same. As such, the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correct when he submits that while raising the grounds of appeal, Revenue is expected to rebut the evidence relied upon by Commissioner (Appeals) for arriving at the finding of unjust enrichment angle in support of the assessee. In the absence of any ground of appeal or any evidence rebutting the evidence relied upon by the lower authorities, it cannot be said that Revenue challenged the findings of unjust enrichment. We also find no merits in the prayer of the Revenue to amend the ground of appeal at this stage when the order already stand passed by the Tribunal and we are dealing with rectification of mistake application. 8. In view of the foregoing, we agree with the learned advocate that the finding of Tribunal that - "the original a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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