TMI Blog2015 (8) TMI 948X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned order has been passed, to the file of the Tribunal, for being dealt with afresh on their own merits and in accordance with law. - Central Excise Appeal No. 212 of 2014 - - - Dated:- 5-1-2015 - S.C. Dharmadhikari and S.P. Deshmukh, JJ. Shri V. Sridharan, Senior Advocate with Prakash Shah, Jas Sanghavi i/b. M/s. PDS Legal, for the Appellant. Shri P.S. Jetly, for the Respondent. ORDER This appeal by the assessee challenges the order passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT). The Tribunal, by the impugned order delivered on 20th March, 2014 and communicated to the appellant on 5th April, 2014, set aside the order passed by the Commissioner of Central Excise and Customs (Appeals), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 11B of the Central Excise Act, 1944, Mr. Sridharan submits that the finding in para 5.2 of the impugned order would indicate that the Tribunal relied upon the Judgment of the Hon ble Supreme Court in the case of Mafatlal Industries Ltd. v. Union of India - 1997 (89) E.L.T. 247 (S.C.), which has been rendered on the constitutionality of the provision, namely Section 11B itself. However, while sustaining the validity of the provision, the Hon ble Supreme Court has referred to the fact that ordinarily a manufacturer will not sell his product at less than the cost price plus duty. By this process, he would not survive in the business. However, according to Mr. Sridharan, in the present case, it is the intermediate product. The intermedia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal is therefore, not raising any substantial question of law. It deserves to be dismissed according to Mr. Jetly. 6. With the assistance of the learned Counsel, we have perused the appeal paper book and the Annexures, including the orders of the Tribunal and the Commissioner. The Commissioner had before him the appeals, which were filed by the assessee Raymond Limited. The Commissioner in dealing with the appeals of the assessee, passed an order, copy of which is annexed to this appeal paper book. That order has been delivered in the appeals, under which, refund claims of ₹ 9,90,585/-, ₹ 34,68,178/- and ₹ 76,61,460/- were respectively rejected by the Assistant Commissioner. Upon noticing the admitted factual posi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no case of unjust enrichment. The Commissioner has referred to several decisions of the Hon ble Supreme Court delivered post Mafatlal Industries Ltd. (supra). He has also referred to pertain orders passed by the Tribunal s Benches at Mumbai, Kolkata and Chennai. In these circumstances, he allowed the Assessee s Appeals. 9. Even in relation to the first question, what the Commissioner (Appeals) held is that the compliance with the Notification has been made and substantially. How that substantial compliance has been made is noted in para 10 of his order. 10. The Revenue was in appeal before the Tribunal against the said findings. We are of the view that the Tribunal in paras 5.1 and 5.2 of the impugned order was required to refer to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal is therefore, admitted on the following two substantial questions of law : (a) Whether in the facts and circumstances of the case, the Appellate Tribunal was right in holding that no evidence has been led by the appellant that it had reversed the credit in respect of duty paid on inputs on which credit has been taken which was used in the manufacture of exempted final products for the whole period, when no such dispute was raised by the Adjudicating Authority? (b) Whether in the facts and circumstances of the case, the Appellate Tribunal was right in holding that the appellant has not discharged the statutory obligation cast on it of providing that incidence of duty paid on the yarn was not passed on to buyers of the fina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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