TMI Blog2004 (7) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... 147/84-C.E., dated 18-6-84, which was withdrawn with effect from 1-9-91 by Notification No. 35/91-C.E. The respondents, however, continued to clear their product without payment of duty. The Department issued a show cause notice dated 26-2-93 demanding duty from them in respect of the clearances of 'Furfural' for the period 1-9-91 to 29-12-92. The demand was resisted, but confirmed by the original authority as per an order dated 9-9-93. The demand so confirmed was for an amount of Rs. 1,54,41,755/-. The authority also imposed a penalty of Rs. 15.00 lakhs on the party under Rule 173Q. Aggrieved by this decision of the original authority (Collector of Central Excise), the respondents preferred an appeal to this Tribunal and made therein a pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0-10-2000, set aside the order of the lower authority and remanded the case to it with certain specific directions. The terms of this remand are contained in para 14 of the order of the Commissioner (Appeals), which is extracted below : "Let me first take up the department's grounds of appeal. On perusal of the impugned order, it is observed that the lower authority has not recorded in his findings as to how he was satisfied that incidence of duty was not passed on to the customers by the respondent-company. The company merely said in their reply to show cause notice dated 20-5-98 that they have not collected any amount towards duty from the customers. On perusal of the clearance documents like invoice cum-delivery note for the relevant p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt to the Consumer Welfare Fund as per order dated 19-12-2001. Aggrieved by this order of the Assistant Commissioner, the respondents approached the Commissioner (Appeals) again and the latter allowed their appeal by order dated 24-2-2003 holding that the doctrine of unjust enrichment was not applicable to the facts of the case. Hence the present appeal of the Revenue. 2. Heard both sides. Ld. Consultant Shri Mandal, representing the appellant, has made an attempt to revive the time-bar issue, after referring to a miscellaneous application filed in this appeal by the Department. Miscellaneous Application No. E/AG/320/2003 was filed by the appellant for leave of the Bench to introduce an additional limitation-related ground in the appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered by the case law relied on by ld. Commissioner (Appeals). Ld. Counsel adds to the case law by citing the Tribunal's decision in CCE, Pune v. Gharda Chemicals Ltd. - 2003 (56) RLT 929, wherein the above case law was followed. The case law relied on by the Commissioner (Appeals) is the following : (i) Easter Industries Ltd. v. CCE - 2003 (161) E.L.T. 1034 (T) = 1999 (35) RLT 696 (ii) Punjab Beverages Pvt. Ltd. v. CCE - 2000 (118) E.L.T. 506 (T) = 2000 (37) RLT 469 (iii) Industrial Cables (I) Ltd. v. CCE - 2002 (140) E.L.T. 543 (T) = 2002 (48) RLT 290 Ld. Consultant has particularly relied on an observation contained in para 4 of the Tribunal's order in Easter Industries (supra), which was to the effect that the presump ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods, to recover duty from them. Ld. Consultant has replied that there is no such evidence on record. At this stage, he suggests a remand of the case to the original authority for fresh consideration of evidence on the unjust enrichment question. This plea is opposed by the Counsel, who submits that it is not open to the department to adduce fresh evidence at this stage. 4. We have examined all the submissions on the question of unjust enrichment. It is not in dispute that the amount of duty covered by the refund claim was paid long after clearance of the goods. It has been categorically held by this Tribunal in the case of Easter Industries (supra) that the presumption under Section 12B of the Central Excise Act would not be applicabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods by the respondents and, therefore, we have to accept the reliance placed by ld. Commissioner (Appeals) on the Tribunal's decisions in Easter Industries (supra) and other cases. The stage of adducing evidence being long over, there is no scope for any remand of the matter. The dispute has to be given a quietus at this stage. As the presumption under Section 12B against the assessee was inapplicable to the facts of this case, the burden was on the Revenue to establish that the refund claim in question was barred by unjust enrichment. They have not succeeded in discharging this burden. Hence the respondents will get cash refund of the amount along with admissible interest thereon. The impugned order is affirmed and the Revenue's appeal i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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