Board authorisation and unjust enrichment in excise refund: Tribunal appeal upheld, but refund failed for lack of evidence.

An appeal to the Tribunal against an order-in-appeal under Section 35B(2) of the Central Excise Act did not require the Board authorisation applicable to review-based appeals from orders of Collectors, so the preliminary objection failed. However, a refund claim could not be allowed without evidence to dislodge the Assistant Collector's finding that the duty burden had been passed on to customers. As the Collector (Appeals) reversed that factual finding without material support, the refund order was unsustainable and the original rejection of refund was restored.

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Issues: (i) Whether the departmental appeal was liable to be rejected for want of proper authorisation. (ii) Whether the refund claim could be allowed in the absence of material to dislodge the finding that the duty burden had been passed on.

Issue (i): Whether the departmental appeal was liable to be rejected for want of proper authorisation.

Analysis: The appeal was against an order-in-appeal passed by the Collector (Appeals), and such an appeal lay before the Tribunal under Section 35B(2) of the Central Excise Act. The requirement of Board authorisation applied to appeals arising from review of orders of Collectors on legality and propriety, not to the present appeal. The Collector was competent to file the appeal himself.

Conclusion: The preliminary objection failed and the appeal was properly instituted.

Issue (ii): Whether the refund claim could be allowed in the absence of material to dislodge the finding that the duty burden had been passed on.

Analysis: The Assistant Collector had rejected the refund claim because the assessee did not substantiate that the alleged excess differential amount had not been passed on to the customer. The Collector (Appeals) reversed that decision without any material to overturn the factual finding recorded by the Assistant Collector. The appellate finding was not supported by evidence.

Conclusion: The order allowing refund was unsustainable and the original rejection of refund was restored.

Final Conclusion: The departmental appeal succeeded, the refund was denied, and the order-in-original rejecting the claim stood restored.

Ratio Decidendi: An appeal to the Tribunal against an order-in-appeal under Section 35B(2) of the Central Excise Act does not require the kind of Board authorisation applicable to appeals from orders of Collectors on review, and a refund claim cannot be allowed by overturning a factual finding on passing on of duty without evidentiary basis.

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