TMI Blog2015 (8) TMI 632X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed to perform it. The failure of the Tribunal to perform this duty and mandated by law itself is a substantial question and which can be safely termed as one of law and arising from the Tribunal’s order. - order passed by the Tribunal is quashed and set aside - Matter remanded back - Decided in favour of assessee. - Central Excise Appeal No. 29 along with 33 of 2014 - - - Dated:- 4-2-2015 - S.C. Dharmadhikari and N.W. Sambre, JJ. Shri V. Sreedharan, Senior Counsel a/with Prakash Shah and Jas Sanghavi i/by PDS Legal, for the Appellant. Shri Pradeep S. Jetly a/with Jitendra B. Mishra, for the Respondent. ORDER These two appeals by the assessee are directed against the order passed by the Customs, Excise and Service Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue, namely, whether that principle can be invoked and applied in the facts and circumstances of the assessee s case, the Tribunal, according to Mr. Shreedharn, learned Senior Counsel appearing for the appellant in support of this appeal, has failed to render any finding, leave alone conclusion. The tribunal has failed to advert to the allegations in a notice to show cause issued by the Revenue. The Tribunal has also not adverted to the findings and conclusions in the order-in-original nor it has expressed any opinion on the correctness of the order passed by the Commissioner (Appeals). Thus, the facts have not been referred to at all nor the legal submissions and the conclusions thereon by the lower authority. 4. On the other hand, Mr. J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion that once the final assessment has confirmed the figure of the tax liability, then, having cleared the goods from the factory to the depot on provisional assessment and on payment of duty there arises a refund claim and to the tune of ₹ 73,42,235/-. That is the excess duty paid on clearance of goods on provisional assessment during the financial year 1999-2000. That is how they addressed a communication on 27th December, 2000 (Annexure D ) to the Superintendent of Central Excise and Customs, Nashik-1. 8. Subsequently, an application for refund dated 18th April, 2001 was filed with the competent authority. The Assistant Commissioner earlier communicated that the refund claim is premature. Later on, he passed an order on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner (Appeals), we find substance in the complaint of Mr Shreedharan that none of them have been referred to either in extenso or even briefly. There is no reference at all made to the arguments of the parties on facts. Given that the principle of unjust enrichment is attracted and when the final assessment is made, still, applicability of that principle on facts is a matter which had to be determined by the Tribunal. The legal issue having been settled and as conceded before us in the judgment of the Hon ble Supreme Court in the case of Allied Photographics (supra) whether on facts the said principle can be applied or not was required to be dealt with by the Tribunal. It was its duty as a last fact finding authority to have considered the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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