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J.K. Cement Works Versus Commissioner of Central Excise, Jaipur-II

2011 (4) TMI 1432 - CESTAT NEW DELHI

Application Nos. E/Stay/2460-2461/2010-EX in Appeal Nos. E/2717-2718/2010-EX(DB) - Final Order Nos. A/370-371/2011-EX(DB) and Stay Order Nos. S/498-499/ 2011-EX - Dated:- 8-4-2011 - R.M.S. Khandeparkar, President and Shri Rakesh Kumar, Member (T) Shri Ashok Sagar, Advocate, for the Appellant. Shri S.R. Meena, DR, for the Respondent. ORDER [Order per : Justice R.M.S. Khandeparkar, President (for the Bench)]. - These appeals were heard in terms of order passed today in Stay Application Nos. 2460-6 .....

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ey cement. During the period 1986-87, there was substantial increase in the demand for cement in the country. The Central Government announced various incentives for the manufacturers of the cement to encourage the increase in manufacturing capacity of the cement industry in the country. Under one of such scheme, consequent to the expansion of the industry the manufacturer was entitled to claim certain rebate in terms of Notification No. 36/87-C.E., dated 1-3-1987. Pursuant to the claim in that .....

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in such cases condition of applicability of principles of unjust enrichment cannot be disputed. However, while applying the said principle, it is necessary for the authorities to deal with the issue as to whether the duty element has been passed on to the customers or not by the manufacturers. In fact Para 8 of the said decision reads thus : 8. But the crucial question is whether the duty element had been passed on to the customer. This is to be factually adjudicated. We, therefore, remand .....

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Commissioner, Chittorgarh, the appellants raised two points, firstly non-applicability of the principle of unjust enrichment in view of the said notification in question and secondly in any case the appellants had not passed over the duty burden to the consumers. The Assistant Commissioner by its order dated 22-12-2008 answered the first point in favour of the appellants, while the second point was answered against the appellants. Being aggrieved with the said decision, the department preferred .....

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ioner (Appeals) refused to deal with the cross-objections on the ground that the appellants did not file any appeal against the part of the order of the adjudicating authority which was against the appellants. 4. By the present appeal both the findings are sought to be challenged by the appellants. 5. Perusal of the order passed by the Supreme Court and particularly Para 8 thereof clearly discloses that the remand order dealt with two aspects, one regarding passing over of the duty ele .....

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ve considered the issue as to whether the principle of unjust enrichment was attracted or not in terms of said notification. In fact, the remand order itself discloses that the matter was remanded only to deal with the issue as to whether the duty element had been passed over to the customers or not. Such a question can arise essentially on application of principles of unjust enrichment. In other words, by the very direction of the Supreme Court, the authority was required to decide as to whethe .....

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