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TMI Blog2011 (8) TMI 1263X X X X Extracts X X X X X X X X Extracts X X X X ..... e, Kolkata-III against order dated 6th February, 2002, passed by the Commissioner of Central Excise (Appeals), Kolkata. 2. The disputes involved in this reference relate to the claim of refund by the respondent in respect of Waste and Scrap of Cables. 3. It appears that there was initially dispute as to the question whether such Scrap and Waste materials were excisable. Such dispute was ultimately resolved by the order of the Assistant Commissioner, Behrampore dated 25th April, 1994 by which it was held that such Waste and Scraps were not excisable. The revenue has not challenged such decision and thus the said order has attained finality. 4. Subsequently, the respondent filed an application for refund of duty paid by them under pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atio decided in the said decision would apply? 8. Pursuant to such direction the Tribunal has made the statement of cases and has sent the matter back to this Court. 9. After going through the question formulated by the Division Bench, we find that from the materials on record there was no justification of formulating a question in a form where it has been mentioned that there are materials before the authority to hold that the burden was passed on to the buyer by the assessee. 10. We find from the materials on record that the purchaser gave specific offer to purchase the items at a firm price of ₹ 69/- per kg. by asserting that they will be under no obligation to pay any excise duty as the materials are not excisable. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. 13. In such circumstances, in our opinion, there was no justification of formulating the question for reference as if there were materials before the authority to hold that the burden had passed on to the buyers. 14. Mr. Mukherjee, the learned advocate appearing on behalf of the appellant, strenuously contended before us that the Tribunal below committed substantial error of law in relying upon the decision of the Supreme Court in the case of Sinkhai Synthetics Chemicals Pvt. Ltd. v. CCE, Aurangabad, reported in 2002 (143) E.L.T. 17, in view of the subsequent decision of the Supreme Court in the case of Commissioner of Central Excise, Mumbai-II v. Allied Photographics India Ltd. reported in 2004 (166) E.L.T. 3. According t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of disposal of this reference in view of the concurrent finding of fact based on evidence by both the Commissioner of Appeals and the Tribunal below on the question of unjust enrichment which is essentially a question of fact. 18. We, thus, find that in the fact of the present case the Tribunal below rightly affirmed the order of the Commissioner of Appeals on the question of unjust enrichment and directed to refund of the excise duty in favour of the assessee. 19. The reference, thus, fails. 20. In the facts and circumstances, there will, however, be no order as to costs. 21. Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities. - - Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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