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TMI Blog2016 (8) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... Order No. A/86771-86772/16/SMB - Dated:- 9-3-2016 - SHRI RAMESH NAIR, MEMBER (JUDICIAL) For the Petitioner : Ms. Padmavati Patil, Advocate For the Respondent : Shri Ashutosh Nath, Asstt. Commr. (A.R) ORDER These appeals are directed against Order-in Appeal No. SB(52-53)52-53/Th-I/2011 dt. 28.1.2011 passed by the Commissioner (Appeals) Central Excise Mumbai Zone-I whereby the Ld. Commissioner upholding the Order-in-Original No. 117/07-08 dt. 10.3.2008 01/RN/TH-I/2008 dt. 21.11.2008, rejected the appeal filed by the appellant. Appeal No. E/725/2011-Mum is on the issue of rejection of refund claim on the ground of unjust enrichment and Appeal No. E/724/2011-Mum is on the issue of recovery of the erroneous refund of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit of ₹ 9,35,707/- in the Cenvat credit account. Aggrieved by the said OIO dt. 23.3.2004, the Revenue filed appeal before the Commissioner (Appeals), Commissioner (Appeals) vide OIA No. BR/137/Th-I/05 dt.1/7/2005 who rejected the departments appeal on the ground that the plea of unjust enrichment were not taken by the department at any time and the said point was also not raised in the show cause notice and also not dealt in the Order-in-Original by the adjudicating authority, and department cannot go beyond the scope of show cause notice. The said Order-in-Appeal was challenged by the Revenue before the Tribunal the Tribunal remanded the matter to the original authority to consider the matter in the light of Sahakari Khand Udyog 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he claim is not hit by unjust enrichment. She placed reliance on the following judgments: (i) Triveni Glass Ltd. Vs. Commissioner of Central Excise, Allahabad-2003 (162) E.L.T. 529 (Tri.-Del.) Upheld by SC-2015-(320)ELT A-338(SC) (ii) Sunrays Engineers Pvt. Ltd. Vs. Commissioner of C.Ex.Jaipur-2015 (318) E.L.T. 583 (S.C.) (iii) Commissioner of Central Excise, Pune-I Vs. Sandvik Asia Ltd.-2015 (323) E.L.T. 431 (Bom.) 4. On the other hand, Shri Ashutosh Nath, Ld. Asstt. Commr. (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that in the Tribunals remand order, it is clearly observed that the appellant have not submitted all the necessary documents by which it can be proved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h has been issued, this is sufficient evidence that incidence of duty paid on the discount amount has not been passed on. However, the lower authority mentioned in the order that the appellants have not produced all the credit notes. In these circumstances, I have no option to remand the matter to the adjudicating authority to decide the matter afresh on the basis of credit notes submitted or to be submitted by the appellant along with the Chartered Accountant Certificate produced by the appellant. On verification of the credit notes and the genuineness of the same, the refund can be allowed to the appellant. The adjudicating authority shall dispose of the de novo adjudication within a period of three months from the receipt of this order. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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