TMI Blog2016 (7) TMI 1114X X X X Extracts X X X X X X X X Extracts X X X X ..... to 30550/2016 - Dated:- 22-6-2016 - Ms. Sulekha Beevi, C.S., Member (Judicial) and Sh. Madhu Mohan Damodhar, Member (Technical) Sh. S.V. Nair, Assistant Commissioner (AR) for the Appellant None for the Respondent ORDER Both the appeals have been filed by department against the order of Commissioner (Appeals). Today when the case came up for hearing as per published list none appeared for the respondent. Being an old matter the case was taken for disposal after hearing the department and perusal of records: The facts of the case are that the respondent M/S Victory Transformers Switchgears Private Limited, Jeedimetla, Hyderabad, Andhra Pradesh, is a manufacturer of Electrical Transformers falling under Tariff Item No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of ₹ 52,84,016/- on the ground that the amount deducted towards delayed supply of goods is in the nature of penalty which is not a deductible amount for arriving at the transaction value as per Section 4(3)(d) of the Central Excise Act, 1944 and also on the ground that the assessee failed to produce the relevant documents in support of the claim, under the provisions of Section 11 B read with Section 12 A of the Central Excise Act, 1944. Aggrieved by the above order, the assessee filed an appeal before the Commissioner (Appeals) who vide Orders-in-Appeal Nos. 55 56/2009 (H-IV) CE dated 24.11.2009 held that they are entitled for refund of amount subject to the provisions of Section 11 B of the Central Excise Act, 1944. 2. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and not on the reduced price. Consequently, no refund arises on merits as well as on grounds of unjust enrichment. In terms of Section 11 B (1) of the Central Excise Act, 1944, any person claiming refund of any duty of Excise is required to enclose the documentary or other evidence including the documents referred to in Section 12 A of the Act ibid to establish that the amount of duty of incidence of such duty has not been passed on by him to any other person. Whereas, in the instant case, the assessee had passed on the duty burden to the customers by raising the invoice under Rule 11 of Central Excise Rules, 2002 which is inclusive of the Excise duty. Further, the customer of the assessee accepted the total invoice value of the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Central Excise, Cochin [2004 (172) E.L. T. 33 (Tri.-Bang.)] (iv) Commissioner of C. Ex., Nagpur Vs Maharashtra Cylinder Ltd., [2003 (157) E.L. T. 688 (Tri.- Mumbai)] 4. We find merit in the contentions put forth by the Revenue. It is a fact that the Commissioner (Appeals) has not addressed the issue of unjust enrichment which the original authority had held as affecting the refund claim. We therefore find ourselves in agreement with the plea put forth by Revenue and remand both the appeals to the original authority for addressing whether the refund claims are hit by unjust enrichment. The appeals are allowed by way of remand. (Operative part of this order was pronounced in court n conclusion of the hearing) - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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