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TMI Blog2014 (9) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... uty for sale of appellant’s finished goods. In addition thereto, the certificate issued by the Chartered Accountant who had audited the accounts including the accounts for the period from 1-8-1982 to 31-12-1986, it was established that the Central Excise duty from the buyers of the finished goods were no collected, there was no passing over of the duty to the consumers and there was no unjust enrichment. - Decided in favour of assessee. - Tax Appeal No. 1419 of 2011 - - - Dated:- 7-8-2012 - Vijay Manohar Sahai and N.V. Anjaria, JJ. Shri D.K. Trivedi, Advocate, for the Appellant. Shri Darshan M. Parikh, Advocate, for the Respondent. JUDGMENT The Present tax appeal under Section 35G of the Central Excise Act, 1944, is directed against the order dated 29-9-2010 of the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad in Appeal No. E/1018/2008 and E/2552/2002, preferred by the appellant-assessee. 1.1 The appeal was admitted by this Court on 22-2-2012 for consideration of following substantial question of law framed by the Court : Whether the Tribunal below committed substantial error of law in setting aside the order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deciding afresh after hearing both the sides. 3.2 By show cause notice dated 31-1-2000, the refund claim for ₹ 13,64,368/- put forth by the appellant was rejected The rejection was on two grounds, firstly, that out of the total claim of refund, ₹ 4,40,290/- was for the period from 13-10-1980 to 1-10-1983 but the letter of protest was given on 1-10-1983. Secondly, the application for refund submitted on 3-4-1992, whereas the refund claim was required to be filed within six months and, therefore, the claim was barred by limitation under Section 11B of the Central Excise Act, 1944. It was alleged that the appellant assessee had not furnished any evidence that the duty for which the refund claim was related was not passed on any other person/consumer. According to the department, it was, therefore, a case of unjust enrichment and therefore the appellant was not entitled to the refund. 3.3 Consequently, the Tribunal passed the order dated 29-9-2010 dismissing the Appeal. Against the said order dated 29-9-2010, the assessee filed a rectification application wherein it was contended that the Tribunal ought not to have remanded the matter and ought to have decided the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Tribunal ought not to have indulge into futile exercise of remanding the matter when it was possible to decide on merits. Learned advocate relied on the invoices in which composite price was indicated as well as the certificate by the Chartered Accountant to bring home his contentions on merits. 4.1 Learned Advocate for the respondent submitted that the invoices are not the only documents from which it could be said that duly element was not passed on to the buyers. According to his submission there were other circumstances such as that the profit margin was high, and therefore, the duty component was part of the price and it was the only inference that the duty burden was passed on. It was submitted by him that original authority had considered all the aspects on the basis of material before it which was concurrently accepted and ultimately upheld by the Tribunal. 5. There is a considerable force in the submission of learned advocate for the appellant that instead of remanding the matter, the Tribunal could have decided the issue on merit. Furthermore, the adjudicating authority ought to have refrained itself from deciding issue on merit, and ought to have stayed it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erify the contents. Moreover, the concerned adjudicating authority has not given any evidence that the incidence of duty has been passed on to other persons. Be that as it may, the appellant at the time of personal hearing have submitted a few copies of invoices from 1981 to 1988 to state the point that the selling price before the duty was paid under protest and after had remained the same. This also supports the view of Chartered Accountant that the incidence of duty had not been passed on. Thus, there is no reason to doubt the certificate issued by Chartered Accountant for which the concerned Deputy Commissioner has not brought any evidence on record. Thus, the claim after the period 1-10-83 cannot be said to be hit by the principle of enrichment. 6. As far as the ground of unjust enrichment is concerned, the finding of the adjudicating authority holding against the petitioner was not justified inasmuch as the same was arrived at by overlooking cogent evidence and material produced by the appellant in support of its contentions that it had not passed on the burden of duty to the buyers of the goods. The invoices evidencing the sale, which were on record, showed that the pric ..... X X X X Extracts X X X X X X X X Extracts X X X X
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