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TMI Blog2008 (10) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... dent had failed to discharge the burden as regards payment of duty having not been passed on to others? (II) Whether in the facts and circumstances of the case, the Customs, Excise and Service Tax Appellate Tribunal was justified in allowing Appeal No.E/2552/02-MUM filed by the Commissioner of Central Excise, Ahmedabad-I?" 2. Heard learned advocates for both the sides. The appeal requires to be admitted on the following substantial question of law: "Whether on the facts and in the circumstances of the case, the Customs, Excise and Service Tax Appellate Tribunal could have passed the order on 5.1.2007 when, admittedly, the hearing had taken place on 7.6.2004 without according a fresh opportunity of hearing to the parties?" 3. The brief f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so taken the principle of unjust enrichment while rejecting the refund claim. The chartered Accountant's Certificate filed by the Respondent has been rejected by both the Lower Authorities as the same has not been found adequate and satisfactory. 2. The Hon'ble Supreme Court in the case of Sahkari Khan Udyog Mandal Ltd. reported in 2005 (181) E.L.T. 328 (S.C.) and Parle International Ltd. reported in 2005 (188) E.L.T. A-81 (S.C.) has held that in the absence of burden of unjust enrichment having been discharged by the assessee, the question of refund does not arise. Therefore, when I find that both the lower authorities have rejected the refund claim on the ground that the respondent has failed to discharge the burden, I do not find any i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded that the written submissions filed by the respondent have been duly considered. The placement of the sentence itself indicates that the said sentence has been inserted after the order was made.
8. In the aforesaid circumstances, without recording any opinion on merits of the dispute between the parties as to entitlement and admissibility of the refund claim claimed by appellant-assessee, Appeal No.E/2552/2002 is required to be heard afresh by the Tribunal.
9. Accordingly, impugned order dated 5.1.2007 made by the Tribunal is hereby quashed and set aside. The appeal stands restored to file of the Tribunal for deciding afresh after hearing both the sides. This Tax Appeal is allowed accordingly with no order as to costs. X X X X Extracts X X X X X X X X Extracts X X X X
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