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TMI Blog2008 (2) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... uced any evidence to prove incidence of duty has been passed – moreover, goods not in existence during relevant time so question of passing of duty doesn’t arise – revenue appeal dismissed - C/847/2007-Mum. - A/303/2008-WZB/C_II/(SMB), - Dated:- 13-2-2008 - Shri A.K. Srivastava, Member (T) [Order per : Shri. A.K. Srivastava, Member (Technical)]- This appeal has been filed by the Revenue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrived subsequently and paid duty on 02.11.2004 and out of charge was taken on 05.11.2004. 5. Subsequently, the respondents got the B/E No. 720870 dt. 15.10.2004 amended and assessed finally on 17.3.2005, wherein the out of charge for eightcontainers (168 MTS) was given, which was earlier cleared on 29.10.2004. The duty amount in amended B.E. (for eight containers) works out to Rs.2,80,376/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought is of excess duty paid in the first instance. When there were no goods there could be no buyers and there could not be any question of passing the incidence of duty to any buyer. In view of this the question of unjust enrichment would not arise." On appeal by the Revenue, the Commissioner (Appeals) upheld the order of the Asstt. Commissioner and rejected the appeal. Hence this appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r could not have sold the goods or used them for any other purpose, there being nothing to sell or use". 8. The case laws relied upon by the Revenue viz. M/s. Mafatlal Industries Ltd. vs. Union of India (1997 (89) ELT 249 (SC) and Sarkari Khand Udyog Mandal vs. CCE 2005 (181) ELT 328 (SC) lay general guidelines in respect of the doctrine of unjust enrichment which in fact have been fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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