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2023 (3) TMI 1208 - AT - Central ExciseRefund of Excise Duty paid - Revenue issued SCN seeking to know as to why the refund claim should not be rejected since they are required to pay the Excise Duty on used and scrapped refractories and the payment done by them is correct - applicability of Principles of unjust enrichment. HELD THAT:- From the OIA passed by the Commissioner (Appeals), it is seen that he has not even addressed this issue raised by the Department in their ‘Grounds of Appeal’. There are no findings as to why or why not the unjust enrichment clause is invokable in the present case. He has gone into the classification and excisibilty of used refractories which was not a Ground before him. Further, this issue was already decided by his predecessor on which no Appeal was filed by the Department. It is seen that the Tribunal in the case of CCE, Mumbai-V, Vs. Pam Pharmaceuticals and Allied Machinery Company Pvt. Ltd.- 2017-TIOL- 1595-CESTAT-MUM has held that Law is well settled that the Appellate Authority is not expected to create jurisdiction for himself to decide the controversy which was not before him. Therefore to the extent learned Commissioner’s view is contrary to the direction of the Tribunal, that calls for set aside. The Commissioner (Appeals) has traversed beyond the Grounds taken by the Department. The OIA is dismissed on the ground of traversing beyond the grounds taken by the Department. As the Appeal is allowed on the ground of Commissioner (Appeals) traversing beyond the Grounds of Appeal before him, the question as to whether the Department could have taken the ground of ‘unjust enrichment’ at the Appeal stage, not perused - appeal allowed.
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