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TMI Blog2015 (8) TMI 632X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal before the Tribunal. He was aggrieved and dissatisfied with the two orders, one styled as an order-in-appeal dated 29th April, 2004 and the other styled as order-in-original of the Assistant Commissioner dated 27th May, 2003. 3. The issue before the Tribunal and raised in the Revenue's memo of appeal was whether the Commissioner (Appeals) was right in confirming the order-in-original dated 27th May, 2003. Insofar as two issues, firstly, whether the principle of unjust enrichment would apply in the event an assessment made is provisionally and on final assessment the duty liability being determined and later on meaning thereby if the assessment made is provisional and the duty amount is yet to be finalized and the liability cry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be found with the Tribunal's order. Hence, this appeal does not raise any substantial question of law but deserves to be dismissed. 5. On perusal of the Tribunal's order and impugned in this appeal, we are of the opinion that it deserves to be admitted, It is admitted on the following substantial questions of law :- (a) Whether in the facts and circumstances of the case, the provisions of unjust enrichment are applicable in the present case? (b) Whether in the facts and circumstances of the case the Appellate Tribunal is correct in applying the decision of the Hon'ble Supreme Court of India in CCE v. Allied Photographics - 2004 (166) E.L.T. 3 (S.C.)? 6. With the consent of the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, the assessee reiterated their claim for refund in the above sum by their letter dated 13th February, 2002. 10. This was scrutinized by the Assistant Commissioner and initially he was reluctant to consider it and called upon the assessee to show cause why it should not be rejected. The asseesee gave an explanation and subsequently appeared for a personal hearing before the Assistant Commissioner. The Assistant Commissioner passed the order-in-original and sanctioning this refund claim. In sanctioning it, he rendered a finding essentially on facts that the principle of unjust enrichment will not be attracted. He, therefore, sanctioned the refund claim. The Department thought that this view of the Assistant Commissioner is prejudici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eof, the arguments canvassed on facts before the Assistant Commissioner and the Commissioner (Appeals) and the relevant findings on factual aspect in their orders. None of this has been referred, leave alone considered. If it was duly of the Tribunal to have referred to it, dealt with the issue on facts and after noting the rival contentions, then, it has clearly failed to perform it. The failure of the Tribunal to perform this duty and mandated by law itself is a substantial question and which can be safely termed as one of law and arising from the Tribunal's order. 12. In the above circumstances, the order passed by the Tribunal is quashed and set aside. The appeal of the Revenue filed before it is restored and for fresh considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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