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TMI Blog2018 (3) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... RG23A and therefore, he has come to the conclusion that if the amount of ₹ 8,40,120/- was adjusted without invoking the bar of unjust enrichment to the said amount. The department was not justified in applying the bar of unjust enrichment to the remaining amount of ₹ 10,34,880/- without there being any cogent material or evidence to support it and without the department having considered the cost structure of goods for that amount. The final decision taken by the third Member that the bar of Section 11B of the Act did not apply in the present case, is correct and justified - appeal dismissed - decided against Revenue. - Central Excise Appeal No. 62 of 2014 - - - Dated:- 6-3-2018 - Hon'ble Bharati Sapru And Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and found variation in the finished good as compared to the balance shown in RG-1. The stock of finished products viz. Zinc Ash was also found short. The stock of H.R. coils, viz. inputs was found excess as compared to the stock register. An investigation was made and the party debited an amount of ₹ 15.00 lacs and another sum of ₹ 3.75 lacs under protest on account of the said discrepancies. Two show cause notices were issued to the party on 14.03.2002 and 28.05.2002. The first notice dated 14.03.2002 was adjudicated and a demand of ₹ 2,84,389/- was confirmed. A penalty of ₹ 1,00,000/- was also imposed. This amount was appropriated out of the sum of ₹ 15 Lakhs deposited by the party under protest. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he presumption was that the same has been passed on to the buyer in the form of incurred/enhanced costing for current and further supplies of the party's products. Being aggrieved by this order, the party filed an appeal before the Commissioner(Appeals), who vide his order dated 30.09.2005, rejected the appeal on the ground that there was indirect unjust enrichment, since the amount was shown in the profit and loss account as revenue expenditure, the same had been passed on to the buyer in the form of incurred/enhanced costing for current and further supplies of the party's product. Being aggrieved by this order passed by the Commissioner, the party filed an appeal before the CESTAT. There was a difference of opinion betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tructure of the goods and despite that the department was invoking the bar of unjust enrichment to the balance amount for which the refund has been claimed and this would not be tenable. Learned counsel for the department Shri Krishna Agrawal has very strenuously argued that the provisions of Section 12A and 12B of the Act are attracted in this case as in this case it seems on presumption that the burden had been passed on indirectly to the buyer. However, the contest made in the present appeal is only with regard to the refund of balance amount of ₹ 10 lacs and odd and no issues have been raised by the department with regard to any unjust enrichment in respect of amount which was adjusted by them for a sum of ₹ 8,40,150/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he department from the amount of ₹ 18,75,000/-. This amount had been paid by way of debit entries RG23A and therefore, he has come to the conclusion that if the amount of ₹ 8,40,120/- was adjusted without invoking the bar of unjust enrichment to the said amount. The department was not justified in applying the bar of unjust enrichment to the remaining amount of ₹ 10,34,880/- without there being any cogent material or evidence to support it and without the department having considered the cost structure of goods for that amount. Having heard the learned counsels for both sides and having examined the case laws as relied by both sides, we are of the opinion that the final decision taken by the third Member that the bar of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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