2016 (11) TMI 4

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..... ed to be the supporting manufacturers, both dated 20th March 2007. These documents were neither produced before the lower authorities and not have not been sought to be introduced as additional evidence. I disregard these letters." 2. Learned Counsel for the appellant pointed out that the above observation in the order is factually incorrect. He pointed out these documents were produced before the Commissioner (Appeals) as well. He pointed out the observation of the Commissioner (Appeals) in the impugned Order-in-Appeal, which read as follows: - "They have now submitted a certificate from the buyers in which it has been indicated that they have not made any payments towards customs duty borne by the importer/seller. It is seen that this d .....

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..... g the view that the refund was liable to be paid to the present respondents as service tax was not passed on to the buyers/customers and there was no unjust enrichment. Therefore, we do not find any illegality in the impugned orders. We are in agreement with the view taken by the Tribunal and Commissioner (Appeals) that there was no unjust enrichment and the respondent is entitled for refund. Both the questions formulated are concluded by finding of fact and the appeal is liable to be dismissed. Both questions are answered against the Revenue in favour of the assessee on the facts of this case. Accordingly this tax appeal is dismissed." In view of the above, he argued that ROM application may be allowed and the order may be rectified. 3. .....

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..... just enrichment can only be discharged on the basis of concrete evidence and the evidence submitted by the appellant does not discharge this burden. 5 The appeals are dismissed" be replaced by following: - "The appellant have produced a certificate from the importer to the effect that importer has not paid this duty to appellant. In the instant case the importer is M/s Earnest Healthcare Ltd. The licence of the appellant has been used by M/s Earnest Healthcare Ltd. as the appellant were merchant exporters. The goods have been imported and used by M/s Earnest Healthcare Ltd. and the duty has been paid by appellant. In these circumstances the only transaction relevant for the purpose of unjust enrichment is the transaction between the appe .....

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