TMI Blog2016 (10) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... of the view that appellants are eligible for the refund of ₹ 2,86,39117/- for the period 3/85 to 4/91 and 3/94 to 4/95 as prayed for in their appeal - refund allowed - appeal allowed - decided in favor of appellant. - Appeal No. E/964/2011 - ORDER No. A/30782/2016 - Dated:- 3-8-2016 - Ms. Sulekha Beevi, C.S. Member(Judicial) and Mr. Madhu Mohan Damodhar, Member (Technical) Shri N. Viswanathan, Advocate for the Appellant Shri P.S. Reddy, AR for the Respondent [Order per: Sulekha Beevi,C.S.,] Brief facts of the case are that the appellants are manufacturers of Ayurvedic Medicaments(Pain Balm) falling under Chapter 30 of the First Schedule to the Central Excise Tariff Act, 1985. The present proceedings have a long ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omer in terms of the judgment cited should be considered by the authorities. The appellants should also be given an opportunity to produce the evidence now produced before the Tribunal to establish that the incidence of duty has not been passed on to the customers 1.3 Thereafter vide Order-in-Original dated 10-04-2008, the claim was again rejected on the ground that the claim was not substantiated; that the asessees failed to produce documentary evidence and no material evidence was produced for consideration as required under Section 11B of the Act. Again, the issue was remanded by the Commissioner(Appeals) to the Original Authority vide Order-in-Appeal dated 30-09-2008, with a direction to quantify the refund due as directed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted the fact of appellant filing all documents with the department and further fact of verification by the authorities, the reason adduced vide its letter that these documents have not been produced by them is totally incorrect and grossly erroneous. 3.3 The authorities below having passed part of the refund claim amounting to which is not possible without the record being available it is wholly erroneous to claim that records pertaining to a specific period has not been produced by them and that too after the claim has been subject to several rounds of adjudication. 3.4 The Commissioner Central Excise(Appeals) vide his order dated 30-09-2008 having allowed their appeal with all consequential relief as per law and the said order ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed prior to the said date, that there is possibility of leaving out the provisional assessments of particular year/s (in case a dispute exists for such year/s) cannot be ruled out, totally exposes the bias and unreasonableness in the order passed. The fact that the department had not let in any evidence either as to the finalization of the provisional assessment for 1985-1991 on a date later to 25-06-1999 or shown that the said assessments are still pending finalization as on today, it is not permissible for the authorities below to record such inconsistent and baseless finding with the sole objective of denying the substantial benefit to the appellant. 3.7 In any case and without prejudice the authority having otherwise conceded that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1995. The appellant argues that lower authorities failed to appreciate that when assessment was finalized for the period 1991 to 1995 the only logical presumption that could arise is that the for the period prior to 1991 was also finalized earlier to 26-06-1999. Strangely the onus is being put on the appellant to prove that assessment prior to 1991 has also been finalized, when in ail propriety this should have been done by the department itself and hence they should have been able to have the status of finalization known to them. This being so finding of lower authority, in the absence of any evidence i hold that assessments for the period prior to 1991-92 were not finalized as on 25-06-1999 and hence not covered by order dated 30-09-2008 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the department, the Tribunal while rejecting the appeal, inter alia, held as follows: We have carefully considered the submissions made at length by both sides and perused the records. The issue involved in this case is regarding the refund claim of the amount, which was provisionally assessed and subsequently finalized by the lower authorities. The entire thrust of the revenue is regarding the satisfaction of Doctrine of Unjust enrichment. We find that there was a dispute on classification and the assessments were provisional during the period February 1985 to 26.04.1995. if that be so, the refund arising out of the finalization of the said provisional assessment need not pass the test of un just enrichment, as an amendment to sub-r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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