TMI Blog2013 (9) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... owed AMAN MEDICAL PRODUCTS LTD. Versus COMMISSIONER OF CUSTOMS, DELHI (2009 (9) TMI 41 - DELHI HIGH COURT) - the purpose of filing refund the assessment order was not required to be challenged when higher duty was paid due to inadvertence - higher duty had been paid due to wrong application of exchange rate which was due to clerical error. Unjust enrichment - the matter was remanded to the Commissioner (Appeals) for examining the unjust enrichment angle and if the assessee produced convincing evidence that the incidence of duty whose refund was claimed by them had not been passed on by them - they would be eligible for refund – decided in favour of assessee. - C/6 of 2008 - FINAL ORDER NO.56252/2013 - Dated:- 5-3-2013 - Archana Wadh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. reported in 2000 (116) E.L.T. 401 (S.C.). On appeal to Commissioner (Appeals), the above order of the Assistant Commissioner was upheld vide order-in-appeal dated 26/9/07. The Commissioner (Appeals), however, dismissed the partys appeal only on the ground that the appellant had not challenged the assessment order and, therefore, in view of Apex Courts judgment in the case of Priya Blue Industries Ltd. vs. CC (Preventive) reported in 2004 (172) E.L.T. 145 (S.C.) the claim cannot be entertained. The Commissioner (Appeals) did not go into the question of unjust enrichment. Against this order of the Commissioner (Appeals), this appeal has been filed. 2. Heard both the sides. 3. Shri B.L. Narasimhan, Advocate, the learned Counsel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner (Appeals) has not gone into the question of unjust enrichment and that in view of this the impugned order is not correct. 4. Shri Amresh Jain, learned DR, defended the impugned order by reiterating the findings of Commissioner (Appeals) and also emphasized that since the appellant had used the imported goods as raw material in the manufacture of finished goods, the principle of unjust enrichment would be applicable in view of Apex Courts judgment in the case of UOI vs. Solar Pesticide Pvt. Ltd. (supra) and that in this regard the appellant have not produced any evidence. He, therefore, pleaded that there is no infirmity in the impugned order. 5. We have considered the submissions from both the sides and perused the records. 6. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate which was due to clerical error. We, therefore, hold that before filing of the refund, it was not required for the appellant to challenge the assessment order and, as such, the judgment of the Apex Court in the case of Priya Blue Industries Ltd. vs. CC (Preventive) (supra) is not applicable to the facts of this case, and therefore, the impugned order upholding the rejection of the refund claim on this ground is not sustainable and is liable to be set aside. 7. In view of the above discussion, the impugned order is set aside. However, the matter is remanded to the Commissioner (Appeals) for examining the unjust enrichment angle and if the appellant produce convincing evidence that the incidence of duty whose refund is claimed by them, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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