TMI Blog2015 (1) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... so relying on the ruling of this Tribunal in the case of Plas Pack Industries (2004 (2) TMI 125 - CESTAT, MUMBAI) wherein it was held that bar of unjust enrichment is not attracted. So far the amount of ₹ 4 lakhs deposited as pre-deposit under Section 35G of the Act following the Hon'ble Bombay High Court's decision in the case of Suvidhe Ltd. (1996 (2) TMI 136 - HIGH COURT OF JUDICATURE AT BOMBAY), I hold that the doctrine of unjust enrichment is not attracted on the said amount. - order of the Commissioner (Appeals) as cryptic and non-speaking as there is no finding recorded and there is failure to exercise his power, as the Commissioner (Appeals) has failed to make any enquiry regarding the ground of unjust enrichment alleged by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the appellant and held that the demand confirmed on the ground of undervaluation cannot be sustained. Further, the Tribunal was pleased uphold the confiscation of the goods and remanded the matter with regard to confiscation of goods to the original adjudicating authority to decide the quantum of redemption fine and quantum of penalty on the appellant. Pursuant to remand, vide order dated 23.11.2012, the Commissioner (Appeals) imposed the redemption fine of ₹ 10,000/- along with a penalty of ₹ 10,000/- on the appellant firm/company under Rule 173Q(I)(bb) and a penalty of ₹ 10,000/- on the partner of the appellant Shri S.K. Nikorawalla. It is further stated by the appellant that the said fine and penalty was deposited a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ording his finding that the refund is not hit by doctrine of unjust enrichment, the refund was granted. 4. Being aggrieved, the Revenue filed appeal before the Commissioner (Appeals) mainly on the ground that the Dy. Commissioner has simply relied upon the C.A. certificate and concluded that the claim is not hit by the doctrine of unjust enrichment. Thus, the adjudicating authority has failed to check this aspect by verifying the Books of Account as to why the assessee has taken the payment in Ledger and Balance-sheet. 5. The appellant challenged the appeal of the Revenue by filing cross-objection and relying on the ruling of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. 1997 (89) ELT 247 (SC), it was stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) ELT 328 (SC), wherein it was held that the doctrine of 'unjust enrichment', is based on equity, and thus irrespective of applicability of Section 11B of the Central Excise Act, doctrine can be invoked to deny benefit to which a person is not otherwise entitled. (iii) Simply relying on the C.A. certificate, the adjudicating authority ought to have verified from the respondent's Books of Account, which has not been apparently done. 5.3 Being aggrieved the appellant is before this Tribunal in the present appeal. 6. The learned Counsel for the appellant argues that so far the amount of ₹ 6 lakhs paid during the course of investigation is concerned, the doctrine of unjust enrichment is not attracted as the same w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted, when duty is paid subsequent to clearance. 6.2 So far the ruling of Sahakari Khand Udyog Madal Ltd. (supra) relied upon by the Commissioner (Appeals), the appellant points out to the facts in this case from para 7 of the ruling, wherein it is recorded that the Assistant Commissioner has observed that the claimant had already charged and collected the duty amount from its customers and as such it was not entitled to claim the said amount. The said ruling is not applicable in the appellant's case as in the said case there is clear finding by the Apex Court that excise duty has been passed on to the customers and in view of such findings, its opinion, Sahakari Khand Udyog Mandal was not entitled to refund and unjust enrichment was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) wherein it was held that bar of unjust enrichment is not attracted. So far the amount of ₹ 4 lakhs deposited as pre-deposit under Section 35G of the Act following the Hon'ble Bombay High Court's decision in the case of Suvidhe Ltd. (supra), I hold that the doctrine of unjust enrichment is not attracted on the said amount. 8.1 As regards the objection of the learned DR regarding non-filing of the balance-sheet of the appellant, I find in view of my finding recorded herein, the same is only academic and not necessary for deciding the appeal. I also hold the order of the Commissioner (Appeals) as cryptic and non-speaking as there is no finding recorded and there is failure to exercise his power, as the Commissioner (Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
