9911796707
TMI Blog2019 (12) TMI 1063X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal has not considered the invoices placed by the appellant before it along with the letters of appellant written to the buyers and after considering both the material evidence viz. invoices and letters written by the appellant to the buyers, the Tribunal has not recorded reasons for coming to the conclusion that the appellant is not entitled for refund of the amount in issue. A judgment is the expression of the opinion of the Court arrived at after due consideration of the evidence and the arguments, it means a judicial determination. Thus, the law can by summarised that the 'judgment' means a decision adjudicating upon the legal rights and liabilities of the parties after appreciating the evidence on record in a particular fact-situation, and that has to be duly supported by reasons - the Tribunal was under obligation to consider all the material evidence available before it and while discarding the same, it was incumbent upon the Tribunal to record reasons and in not doing so, the Tribunal erred in law and fact both. Considering the undisputed submissions made by the learned counsel for the appellant that certain documents were filed by the appellant before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis of the documents and material that the appellant has not charged the excise duty from the buyers. However, it is submitted on behalf of the appellant, that without considering the documents and material, which was placed by the appellant, the Appellate Authority/Commissioner (Appeals) Custom, Central Excise Service Tax, Lucknow dismissed the appellant's appeal vide order dated 30.01.2007. The Authorities of the Revenue Department have not recorded the reasons, as required under the law, on the evidence led by the appellant while rejecting the claim of refund of the appellant. Aggrieved by the order dated 30.01.2007, the appellant filed an appeal before the Tribunal, which was dismissed vide order dated 10.12.2009. In view of the above factual background, the instant appeal has been filed by the appellant under Section 35G of the Act, 1944. The impugned order has been challenged on the ground that in the present case, there is no unjust enrichment on the part of the appellant, as held by the Authorities of the Central Excise Department and in fact the appellant has not charged the Central Excise Duty @ 16% from the buyers an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y misconceived and it is clearly established and proved by the appellant that the excise duty was not passed over to the buyers. Further, during the course of arguments, learned counsel for the appellant submitted that certain documents were filed by the appellant through supplementary affidavit before the Tribunal, however the same were not considered by the Tribunal while passing the order impugned. We have heard learned counsel for the parties and gone through the record as well as considered the arguments raised by the learned counsel for the parties. It appears from the record that during the pendency of the appeal, the application for amendment (C.M. Application No. 60609 of 2019) was preferred and the same was allowed by this Court vide order dated 14.05.2019 and pursuant to the same, the amendment was incorporated by adding sixth substantial question of law. The questions of law mentioned in the memo of appeal, after amendment, read as under:- 1. Whether or not the bar of unjust enrichment will be attracted in a case where duty was paid under protest and specific letters were written to the dealers explaining the reasons of deduction/di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excise duty to the buyer. For the purposes of decision on the question framed by us, we feel it appropriate to quote the relevant portion of the order of the Tribunal dated 10.12.2009, under appeal, which on reproduction reads as under:- 6. I have carefully considered the submissions from both sides and perused the records. There is no dispute that on merits, the appellants are eligible for the refund claimed by them. In fact, the refund has been sanctioned and credited to the Consumer Welfare Fund. The letters addressed to the dealers (according to the learned Consultant they are representative in nature) show that as if consequent to payment of duty the appellants were absorbing the burden of duty and the prices remained the same as it was prior to the period when the duty was not being paid. Provocation for issue of such letters is not furnished. There is no reference in the said letters of any resistance of the buyers to buy the goods with the element of duty. After all, the central excise duty is an indirect tax and the role of the manufacturer and the dealer down the chain of sale is to pass on the burden to the ultimate consumer. No evidence whatsoever h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ardari Lal, AIR 1966 Pun 227). A judgment is the expression of the opinion of the Court arrived at after due consideration of the evidence and the arguments, it means a judicial determination, (vide: U.J.S. Chopra v. State of Bombay, AIR 1955 SC 633: 1955 SCJ 603: (1955) 2 SCR 94; and State of Bihar v. Ram Naresh Pandey, AIR 1957 SC 389: (1957) SCC 282: 1957 Cr LJ 567). Thus, in view of the above, the law can by summarised that the 'judgment' means a decision adjudicating upon the legal rights and liabilities of the parties after appreciating the evidence on record in a particular fact-situation, and that has to be duly supported by reasons. The Apex Court in the judgment passed in Civil Appeal Nos.3448-3449 of 2019 (Kushuma Devi v. Sheopati Devi (D) Ors.) observed as under:- 9. This Court has consistently laid down that every judicial or/and quasi-judicial order passed by the Court/Tribunal/Authority concerned, which decides the lis between the parties, must be supported with the reasons in support of its conclusion. The parties to the lis and so also the appellate/revisionary Court while examining the correctness of the order are en ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
