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TMI Blog2016 (12) TMI 1368X X X X Extracts X X X X X X X X Extracts X X X X ..... to the customers - the facts and the issue considered in the said judgment was not before the lower authority. Therefore, in our view the matter needs to be remanded. We remand the matter to the original authority for reconsideration of the whole issue in the light of the judgment of the Hon’ble High Court in the case of Pudumjee Plant Laboratories Ltd. - appeal allowed by wy of remand. - C/909/2004 - A/88408/16/CB - Dated:- 12-7-2016 - Shri Ramesh Nair, Member (Judicial) and Shri C J Mathew, Member (Technical) Shri T. Viswanathan, Advocate for the appellant Shri V.R. Reddy, Asstt. Commissioner (AR) for the respondent ORDER The appeal is directed against Order-in-Appeal No: 277/2004 MCH dated 16/06/2004 passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submits that the doctrine of unjust enrichment is not applicable in respect of capital goods which has been dealt with extensively by the Madras High Court in the case of Commissioner of Central Excise v. Indo-Swiss Synthetic Gem Mfg. Co. Ltd. [1996 (13) RLT 379 (Mad.)]. He submits that the capital goods imported by the appellant was used captively and the same was not sold. Therefore, there is no question of passing on the incidence of duty of such capital goods to any other person. He submits that the very same issue has been considered by the jurisdictional Hon ble High Court of Bombay in the case of Commissioner of Customs (Import) v. Pudumjee Plant Laboratories Ltd. [2008 (224) ELT 35 (Bom.)] wherein even the Hon ble Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t been passed on to any other person. In the present case, no such burden has been discharged. Therefore, both the lower authorities have rightly held that the refund is hit by bar of unjust enrichment. 5. We have carefully considered the submissions made by both the sides. We find that the learned counsel has taken a stand that the price of the final product manufactured by the appellant was the same as the price of the other manufacturers/suppliers. Therefore, incidence of duty was not included in the price of the final product and was not passed on to any other person. In this regard the counsel heavily relied upon the judgment of the Hon ble Bombay High Court in the case of Pudumjee Plant Laboratories Ltd. (supra) . We find that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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