TMI Blog2009 (6) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... e of unjust enrichment. Aggrieved by such an order, the respondent preferred an appeal before the learned Commissioner (Appeals). The learned Commissioner (Appeals) after narrating the facts and circumstances of the case came to the conclusion that the impugned order passed by the Adjudicating Authority in rejecting the refund claim of the respondent needs to be set aside and he did so. Revenue is aggrieved by such an order and is before the Tribunal. Held that- , we do not find any merits in the appeal filed by the Revenue. The impugned order is correct and legal and needs to be upheld and we do so. The appeal is rejected. - E/42/2008 - 1039/2009 - Dated:- 18-6-2009 - S/Shri T.K. Jayaraman, Member (T) and M.V. Ravindran, Member (J) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Adjudicating Authority has given the refund of the amount of the pre-deposit which was ordered by the Tribunal. It is his submission that the balance amount of refund which was rejected by the Adjudicating Authority is on the ground that they have not satisfied the doctrine of unjust enrichment. He would submit that the price of the products cleared by the respondent remained the same as was during entire period of pre and post classification dispute. He would submit that it is a fact that the respondent had been collecting the duty from his customers. It is his submission that the decision of the Constitution Bench of Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. v. UOI - 1997 (89) E.L.T. 247 (Supreme Court) will apply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of CCE, Hyderabad v. ITC Ltd. as reported at 2005 (179) E.L.T. 15 (Supreme Court). We find that the details of the amount paid by the respondent 'under protest' towards the duty liability for the period is as under : Amount paid 'under protest' towards the duty liability on the goods cleared for the period 11-5-2004 to 27-2-2005: 1. 2/2005-06 23-2-2006 25,00,000 4 27-2-2006 2. 3/2005-06 8-3-2006 5,00,000 6 8-3-2006 3. 4/2005-06 13-3-2006 5,00,000 8 13-3-2006 4. 5/2005-06 15-3-2006 5,00,000 10 15-3-2006 5. 6/2005-06 18-3-2006 5,00,000 12 18-3-2006 6. 7/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the point. In that case Revenue approached the Hon'ble High Court referring a question of law under Section 35G of the Central Excise Act. The question of law under Section 35G of the Central Excise Act. The question of law which was referred to the Hon'ble High Court was as under : "Whether the Hon'ble CEGAT has erred in allowing refund of Central Excise Duty even when the respondent No. 1 has failed to discharge the burden to prove that the incidence of duty had not been passed on to the buyer as required under sub-section (1) of Section 11B and Section 12B of the Central Excise Act, 1944?" 5.2 After considering the submissions made by the C.G.S.C. for the petitioner, the Hon'ble High Court came to the following conclusion : "We ..... X X X X Extracts X X X X X X X X Extracts X X X X
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