TMI Blog2019 (4) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... isions but the same were not considered by the Commissioner (A). In view of all these circumstances, the impugned order is not sustainable in law and therefore the same is set aside - further matter remanded to the Commissioner (A) for the purpose of examining the issue of limitation and unjust enrichment. Appeal allowed by way of remand. - C/21627/2017-DB - Final Order No.20312/2019 - Dated:- 29-3-2019 - MR. S.S GARG, JUDICIAL MEMBER And MR. C. J. MATHEW, TECHNICAL MEMBER B.K. Singh, Advocate For the Appellant Mr. P Gopa Kumar, AR For the Respondent ORDER Per: S.S GARG The present appeal is directed against the impugned order dated 12.09.2017 passed by the Commissioner (A) whereby the Commissioner (A) ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity after considering the submissions of the appellant vide Order-in-Original dated 05.04.2016 rejected the refund claim on account of re-assessment, limitation and unjust enrichment and also the classification. Aggrieved by the Order-in-Original, the appellant filed appeal before the Commissioner who also rejected the appeal of the appellant on limitation and unjust enrichment but allowed the same by holding that assessment need not be challenged. The Commissioner has also held that the Notification No. 12/2012-CE date 17.03.2012 whereby Entry CTH 68022190 was introduced for the first time has no retrospective application unless it is specifically stated. 3. Heard both sides and perused the records of the case. 4. Learned Counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he party: Classic Marbles v. Commissioner of Central Excise, Vapi reported in 2013 (293) ELT 563 (Tri. Ahmd.). Oriental Trimex Ltd. v. Commissioner of Central Excise, Noida reported in 2010 (249) ELT 259 (Tri. Del.). Oriental Trimex Ltd. v. Commissioner of Customs, Central Excise and Service Tax, Noida Final Order No. 41719-41720/2017 dated 14.08.2017 in Appeal No. C/400/2008-DB, C/167/2009-DB. 4.1. He further submitted that on the basis of the decision of CESTAT cited supra in the appellant s own case, the Commissioner of Central Excise, Noida allowed the benefit of Notification No. 04/2006-CE dated 01.03.2006 to polished marble slabs. He relied upon the following cases: Order-in-Original No. 28-29/Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit of Notification No. 04/2006-CE dated 01.03.2006 retrospectively. As far as the issue of limitation is concerned, we find that the Commissioner has observed that the party has not contested the issue of limitation with respect of Bill of Entry at Serial No. 1 to 15 whereas as per the appellant as they have strongly contested the same and the Commissioner (A) has not considered all his pleas with regard to the limitation in the proper perspective. We also find that the Commissioner (A) has held that duty burden has been passed on by the appellant to their buyer and all the transactions are hit by rigor of unjust enrichment. Further, we find that in the appellant s own case, this Tribunal vide its Final Order No. 20463/2018 dated 06.02 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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