TMI Blog2009 (10) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... were made under protest inasmuch as the assessee disputed the above classification and claimed the goods to be classifiable under Heading 90.26 which attracted lesser rates of duty. There were altogether 16 bills of entry which were filed during the periods September to December 2000. In respect of one bill of entry (No. 146969 dated 3-10-2000), the assessee contested the classification and obtained a favourable order from the Commissioner (Appeals) who held the components to be classifiable under Heading 90.26. The appellate Commissioner s order became final for want of challenge by the Revenue. In this scenario, the assessee filed refund claims not only in respect of the excess duty paid on the above bill of entry but also in respect of w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h duty was passed on to customers. The appellate authority concluded that the appellant has failed to produce convincing evidence to show that the price before and after remained the same and incidence of duty was not passed on to the consumer. On this basis, the appeal was dismissed as unsubstantiated. 3. We have heard both sides and considered their submissions. 4. According to the learned counsel for the appellant, the conclusion reached by the original authority is contradictory to certain crucial findings of facts recorded by it. It is his submission that sufficient evidence in the form of Chartered Accountant s certificate and allied records was available on record before the original authority itself and, therefore, the finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en passed on to customers. Contextually, it is also pointed out that one such certificate (dated 3-7-2003) was issued by the Chartered Accountant long after the impugned order was passed and hence the same cannot be admitted as evidence. In his rejoinder, the learned counsel submits that the new contention raised by the learned SDR as to the assessments is not liable to be entertained at this stage. He submits that both the lower authorities proceeded on the premise that the refund claims were liable to be allowed but for unjust enrichment. The Revenue at no stage resisted the refund claims on the above ground. The learned SDR at this stage intervenes (with the leave of the Bench) and submits that a legal plea can be raised at this stage al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee. The only ground on which that authority proposed to reject the claim was unjust enrichment. On this point, it rejected the claims for want of evidence against the bar of unjust enrichment. The first appellate authority also proceeded more or less on the same lines. Neither against the order-in-original nor against the order-in-appeal has the Revenue filed any appeal on the ground that the refund claims were not admissible for want of challenge to the assessment. In such a scenario, we have to overrule the objection raised by the SDR that the assessments were not challenged cannot, at this stage, be a ground for resisting the refund claims. 6. The question which now arises is as to whether the assessee succeeded in showing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e lower appellate authority has proceeded on the premise that the price of the goods remaining the same, if proved, is enough ground for cash refund of duty without the bar of unjust enrichment. This view is not supported by judicial authorities. Case law is to the effect that price of the goods remaining the same during the material period, per se, would not constitute enough ground to get over the bar of unjust enrichment. This is because constancy of price is attributable to various factors as observed by the Hon ble Supreme Court as also by this Tribunal in various cases. The Chartered Accountant also appears to have certified in favour of the assessee on the sole ground of constancy of price. In this scenario, the burden is more on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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