TMI Blog2007 (9) TMI 516X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to differential duty amounting to Rs. 3,07,339/- and therefore provisional assessment was done taking a bank guarantee of Rs. 61,500/-; the final assessment passed 26-3-01(?) and bank guarantee passed encashed on 24-4-01. (b) On appeal by the party, the assessment order was set aside by the Commissioner (Appeals) by his order dt. 16-8-01; the appeal filed by the department, against the order of Commissioner (Appeals) was dismissed by Tribunal vide their order dt. 18-6-03. (c) In pursuance of the order dt. 16-8-01 of the Commissioner (Appeals), read with the order of the Tribunal, the appellant claimed a refund on 18-12-03 which was sanctioned by the original authority vide his order dt. 17-11-04, inter alia, holding th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmits that the bank guarantee given by the appellant can be considered as a pre-deposit only till the final assessment was completed and the same was encashed. On the date of encashment the duty stood paid to the Department in pursuance of the order of finalization by the competent authority. When the order was set aside by the Commissioner (Appeals), refund became due. He also submitted that in every case including provisional assessment also, the responsibility is on the claimant to prove that they have paid the duty and that they have not passed on the burden of duty to the consumer. Since the duty has been directly collected after finalization in April 01, the presumption is that they have passed on the burden to the consumer and they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Assistant Commissioner. He should have set aside the order with direction to re-examine the claim from the angle of unjust enrichment. To that extent, the order is not legal and not proper. 7. Therefore, I set aside the order of the Commissioner (Appeals) and remand the matter to the original authority to reconsider the refund claim from the angle of unjust enrichment. The appellant shall produce evidences within 45 days from the date of receipt of this order to substantiate their claim that the burden of duty has not been passed on in their cases. The original authority shall decide the expediciously and within 45 days after the expiry time limit given to the appellant to produce the evidence. He shall also grant reasonable opp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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