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TMI Blog2024 (6) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... of unjust enrichment or not? 2. The facts of the case are that the respondent were engaged in the activity of manufacturing of heavy machines and equipment thereof. After manufacturing of the equipments/machines the respondents informs their customer to take delivery of the same and issues invoices as soon as the goods were manufactured and approved by the customers. Thereafter, the respondent paid excise duty and machines and equipments were transferred to dispatch section. During the period January 2010 to March 2010, the respondent issued 559 invoices for clearance of machines/equipments to the customers which could not be cleared due to unavailability of transport or at the request of the customers to hold the goods for some time. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for verification of the fact that whether the respondent has passed the bar of unjust enrichment or not. Against the said order, the Revenue is before us. 3. The Ld.AR for the department submits that the Ld. Commissioner has failed to appreciate that the issue which was decided by the Commissioner and which is sub judice before this Tribunal, the respondent has opened a parallel proceedings to annul the effect the Commissioner's order. He further submitted that there is no provision in Central Excise Act or Rules made thereunder authorizes the Commissioner(Appeals) to give his observation and findings on the issue in a case, which has been dealt with and adjudicated by the Commissioner either directly or in parallel proceedings which has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, given the fact that the old 559 invoices were seized. In addition to this, the respondent made available the following documents to substantiate the fact of payment of excise duty twice, which have been duly noted by the Ld. Commissioner(Appeals) before passing the impugned order-in-appeal. This department's appeal has also not questioned the truth and correctness of such evidences: He also produced Gate Register, Transporter Affidavit, Customer Affidavit, Correlation between old and new invoices. These documents evidences that the respondent was bona fide having cleared the same goods which was ought to be cleared by the respondent during July 2010 to December 2010 and same were cleared later on. In that circumstances, the appeal filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of seized goods but for transporters detail and time of removal. I find that appellant produced relevant gate register for the period in question which shows that the goods pertaining to seized 559 invoices were not cleared. It is also on record that the transporers like one Chandan Kumar Thakur S/o Sri Murlidhar Thakur Manager of M/s. Carrier Corporation of India - a Transporter in his Affidavit claimed that the invoice No. said to be issued in the name of his company during the period Jan, 2010 to March, 2010 were gone through by him and he claimed that his company ha snot transported impugned goods against those invoices. He further sworn that the heavy machinery were finally transported in respect of the invoices which were made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h evidence of goods having been cleared against those earlier seized invoices have been brought on record by the department. 6. The other contention was that the value of the seized goods has been arrived on the basis of 559 seized invoices which shows that the department accept that the said invoice in question pertains to seized goods only. I find that this contention is supported by the fact as the seizure value has been arrived on the basis of the value shown in these invoices. 7. The appellant was asked during hearing the reason of not entering the goods in RG-1 Register for which the contention was that these goods are heavy machinery and it is a practice that at the time of clearances these goods are entered in RG-1 Register. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of proceedings before learned Commissioner, 559 seized invoices remain duty paid. 9. In view of the above discussion it becomes clear that duty has been paid twice for the same goods and refund is admissible subject to the provisions of unjust enrichment. It is directed that Learned Adjudicator shall verify this aspect only after verifying the relevant records. It is expected that the said process shall be completed within two months of the receipt of this order." 7. As the Ld. Commissioner(Appeals) passed the order after verifying all the issues regarding the clearance of the goods in question and payment of duty thereof and considering the Affidavits filed by the customers as well as transporters' gate passes etc., we hold that the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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