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TMI Blog2014 (9) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... n 22-2-2012 for consideration of following substantial question of law framed by the Court : "Whether the Tribunal below committed substantial error of law in setting aside the order passed by the Commissioner of Appeals on the question of unjust enrichment by totally overlooking the fact that the assessee's invoice showed composite price, and duty was not indicated separately and sale price before as well after reclassification remained the same?" 2. Heard learned Advocate Mr. D.K. Trivedi, for the appellant, and learned Advocate Mr. Darshan Parikh for the respondent-department. 3. The facts in the background giving rise to present appeal, as summarized by the Tribunal in the impugned order, may be stated as fallows. The asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the order of the Tribunal, the assessee preferred Tax Appeal No. 930 of 2007 before this Court. The said Tax Appeal was decided by a Division Bench of this Court on 16-10-2008 [2009 (234) E.L.T. 201 (Guj.)]. By that order this Court set aside order dated 5-1-2007 of the Tribunal restored the appeal to the file of the Tribunal for deciding afresh after hearing both the sides. 3.2 By show cause notice dated 31-1-2000, the refund claim for Rs. 13,64,368/- put forth by the appellant was rejected The rejection was on two grounds, firstly, that out of the total claim of refund, Rs. 4,40,290/- was for the period from 13-10-1980 to 1-10-1983 but the letter of protest was given on 1-10-1983. Secondly, the application for refund submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appeal was admitted by the High Court and had requested the authority not to proceed with the case further and to give opportunity of personal hearing since the matter was pending before the High Court, the authority passed order dated 9-3-2011 concluding that there was unjust enrichment as the duty element was passed onto other person. 3.6 Passing of order dated 9-3-2012 by the authority, even as the appeal against the order of the Tribunal was admitted by this Court as above, compelled the appellant to file Application No. 85 of 2012 to get the order dated 9-3-2012 set aside. This Court by order dated 9-5-2012 passed in the said civil application stayed all further proceedings of the appeal before the Commissioner of Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the profit margin was high, and therefore, the duty component was part of the price and it was the only inference that the duty burden was passed on. It was submitted by him that original authority had considered all the aspects on the basis of material before it which was concurrently accepted and ultimately upheld by the Tribunal. 5. There is a considerable force in the submission of learned advocate for the appellant that instead of remanding the matter, the Tribunal could have decided the issue on merit. Furthermore, the adjudicating authority ought to have refrained itself from deciding issue on merit, and ought to have stayed its hand, when the question on the aspect of unjust enrichment was pending before this Court and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ." 5.2 That there was material and evidence available on record on the aspect of unjust enrichment is clearly suggested by the following observations of the Commissioner (Appeals) from whose order, the matter went to the Tribunal. "As regards the question of unjust enrichment, the appellants 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 not given the certificate on the basis of cost records. This is a very funny argument because unless the Char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In addition thereto, the certificate issued by the Chartered Accountant who had audited the accounts including the accounts for the period from 1-8-1982 to 31-12-1986, it was established that the Central Excise duty from the buyers of the finished goods were no collected, there was no passing over of the duty to the consumers and there was no unjust enrichment. 6.1 The invoices showed that the amount was composite and without duty component. The Madras High Court in the case of Dollar Co. v. G.O.I. [1986 (24) E.L.T. 245 (Mad.)] held that when assessee's invoice showed a composite price and duty was not indicated separately and the sale price of the goods before as well as after the reclassification, revaluation etc. remained the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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