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TMI Blog2019 (5) TMI 1283X X X X Extracts X X X X X X X X Extracts X X X X ..... an issue. But on the other hand, the appellate authority has not discussed about it - The case of the adjudicating authority that the duty was passed on to the appellant s unit at Baddi, Himachal Pradesh, does not hold water since while issuing the remand order, the Commissioner (Appeals) himself in his order dated 03.01.2017 has clearly observed that the amounts which were claimed as refund were relating to the amounts paid after clearance of goods and not passed on. Apparently, there is no challenge against this finding by the Revenue nor has the impugned order found anything wrong with the above findings. Thus, the case of the assessee that it has not passed on the duty element stands established - there is no scope to allege unjust e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forum against the Order-in-Appeal dated 30.10.2014. 4. Be that as it may, as long as the aggrieved party furnishes any Final Orders against the Order-in-Appeal (supra), if not, at least a Stay Order staying the operation of the above order, the findings therein will have to be accepted and the Revenue has no choice but to implement the same. 5.1 In the impugned order, however, the Commissioner (Appeals) referring to the above Order-in-Appeal, has only tried to disprove the findings or directions in the above order which in my humble opinion, is not permissible since it would only amount to change of opinions and the subsequent officer can never sit over the judgement of the order or findings of another officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g with an almost similar issue and after considering relevant provisions and various decisions, has held as under : 7. The first question of law, which is raised, relates to the plea of unjust enrichment and much emphasis is laid on the decision of the Supreme Court in Mafatlal Industries case [ 1997 (89) E.L.T. 247 (S.C.)]. Relevant portion of the order passed by the Supreme Court in Mafatlal Industries case (supra) has been extracted in the grounds (b) and (c). There is no dispute with regard to the proposition of law as laid down by the Supreme Court. In the present case, as is evident from the records, it is not a case of refund of duty. It is a pre-deposit made under protest at the time of investigation, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw against the Revenue and in favour of the assessee. 7. Further, I do not see any disputes with regard to the CA certificate furnished by the assessee, on which the adjudicating authority has tried to make an issue. But on the other hand, the appellate authority has not discussed about it. 8.1 The case of the adjudicating authority that the duty was passed on to the appellant s unit at Baddi, Himachal Pradesh, does not hold water since while issuing the remand order, the Commissioner (Appeals) himself in his order dated 03.01.2017 has clearly observed that the amounts which were claimed as refund were relating to the amounts paid after clearance of goods and not passed on, as was contended in the Show Cause ..... X X X X Extracts X X X X X X X X Extracts X X X X
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