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TMI Blog2010 (9) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... ation under Tariff Item 26AA(i) of erstwhile Tariff upto 31.7.83and under heading 25(8) w.e.f. 1.8.83 to 28.2.86 and under Chapter Heading No.72.08 of Central Excise Tariff Act, 1985 thereafter. Finally, in the year 1991, the Assistant Commissioner, after taking into account the litigation right upto Hon'ble Supreme Court in respect of such item, accepted the appellant s claim of classification under heading 25(8). The said order of the Assistant Commissioner has attained finality as no appeal was filed against the same. Accordingly, the appellant filed a refund claim in April 1991, for refund of excess duty paid by them during the period 1980-1986. The said refund claim was originally rejected by the Assistant Commissioner on the aspect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal for de-novo decision. This is how the Appeal No.E/2552/2002 stand listed before us for disposal. 5. Appeal No.E/1018/2008 stand filed by the appellant M/s Ashish Metal Rolling Mills. It is seen that after Commissioner (Appeals) vide his earlier order dt.26.4.02 partly held in favour of the assessee, the original adjudicating authority allowed refund claim of Rs.9,24,078/- for the period subsequent to 1.10.83. This was in compliance to Commissioner (Appeal) s direction and was as consequential relief. The said order of grant of refund by Assistant Commissioner was challenged by Revenue before Commissioner (Appeals). By that time, the Tribunal s order allowing Revenue s appeal against first order of Commissioner (Appeals) was available. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le dealing with on the aspect has observed as under: 6. As regards the question of unjust enrichment, the appellant have submitted a certificate of Chartered Accountant, certifying the burden of incidence of duty has not been passed on to other persons by the appellants. The concerned adjudicating authority has rejected the certificate of the Chartered Accountant on very nebulous ground saying that the Chartered Accountant has not mentioned that he has given the certificate on the basis of cost records. This is a very funny argument because unless the Chartered Accountant seen the relevant records, he cannot verify the contents. Moreover, the concerned adjudicating authority has not given any evidence that the incidence of duty has been pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) value and the duty element is also Per Metric Tonne. As the duty has not been separately shown in the invoices, the same would be to the effect as if no separate duty is being charged by them from their customers. On the other hand, learned SDR submits that as no separate duty was being reflected in the invoices, same is supposed to have been included in the total value of the product. 10. We find that the angle of unjust enrichment does not stand examined in detail by either of the authorities in either of the proceedings in question. The same being relatable to the fact, which can be verified at the original level, we feel handicapped to give any decision at the second appellate stage. Though we feel constrained to remand the matter to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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