1998 (6) TMI 239

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....hi who rejected the appeal involving refund claim of Rs. 27,216/- but allowed the other appeal relating to the refund claim of Rs. 1,20,000/-. The present appeal has been filed challenging the rejection of the former appeal. 2. On behalf of the appellant, Shri A.L. Mathur, learned Consultant made submissions on merits and on the question of unjust enrichment. He contended that the refund claim is not hit by the provisions relating to unjust enrichment as the refund claim was not pending with the Assistant Collector, when Section 11-B was amended in September, 1991 introducing the concept of unjust enrichment. He submitted that their refund claim is admissible on merits also. He added that the goods in question namely Elastic Rail Cl....

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....leared on 31-3-1985, on the ground that the invoice thereof had been issued on 1-4-1985 and therefore this value was wrongly included in the value of clearance made during 1985-86. Obviously the plea was that since the goods were cleared on 31-3-1985, during the financial year 1984-85, their value cannot be included, in the value of goods for financial year, 1985-86. The Assistant Collector has not rejected the claim giving any findings on this point but has rejected the claim on the ground that during the year 1984-85, the appellants' clearances were more than Rs. 50 lakhs and, therefore, they were liable to pay duty @ 12% after the value of clearances of Rs. 40 lakhs during 1984-85, which have been paid correctly. The appellants' main con....

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....d all the documents regarding their clearance including the subject clearances made on 31-3-1984, though invoices therefor had been issued on 1-4-1985. Their claim is that such clearances are to be included in the clearances for the year 1984-85 and not for the year 1985-86 as wrongly taken by them while paying the duty in question. We find that the Collector (Appeals) had decided the matter on grounds different from what had been applied by the Assistant Collector and different from those raised in the show cause notice. The impugned order deserves to be set aside on that ground alone. We, therefore, order accordingly and remand the matter to the Assistant Commissioner for de novo decision applying the provisions of the appropriate exempti....