2011 (9) TMI 596

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.... duty of Rs. 4,85,337/- vide their application dated 29/08/2002 on the ground that they have paid this amount in excess of duty recovered from the customers at the time of sale of the goods from the depot. After issuing a show cause notice their refund claim was rejected by the jurisdictional Assistant Commissioner vide order-in-original dated 21/02/2003. They preferred an appeal before the Commissioner (Appeals), Pune who vide order-in-appeal dated 29/09/2005 upheld the order-in-original and rejected the appeal. The assessee preferred an appeal before the CESTAT and the CESTAT vide final order dated 15/02/2007 held that the appellant are entitled for refund on merits. However, since the issue of unjust enrichment was not examined by the lo....

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....e Commissioner (Appeals) against the Assistant Commissioner's order on the ground that while sanctioning the refund claim the Assistant Commissioner had not called for the copies of the invoices issued to the customers to ascertain the amount of Central Excise duty passed on to them and only after ascertaining the duty burden passed on to the customers, the said authority should have decided the matter of unjust enrichment. The Appellate Commissioner held that since the department had accepted the CESTAT's order dated 15/02/2007 and the refund has been sanctioned in terms of the CESTAT order, the Revenue's appeal is not sustainable and accordingly, he upheld the order of the adjudicating authority and rejected the department's appeal vide o....

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.... same order passed by the lower authority. The Commissioner (Appeals) appears to have not applied his mind at all. Otherwise, in respect of the same order he could not have passed two orders-in-appeal 'one upholding the order and the other remanding the order back to the original authority. Further, the Commissioner (Appeals) does not have power under the law to remand the case back to the original authority and, therefore, the orders passed by the Commissioner (Appeals)' one vide order dated 23/09/2009 and the other vide order dated 07/05/2009 merit to be set aside and I do so. 7. Coming to the issue for claim of interest made by the assessee, as per the provisions of Section 11BB, interest is liable to be paid only when any duty ordered ....

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....merit in the appeal filed by M/s. Finolex Cables Limited and accordingly I reject the same. 8. Coming to the appeal filed by the department, the submission of the department is that the original refund sanctioning authority should have verified the invoices and ascertained whether duty burden has been passed on to the customer or not and if not to what extent.  In the instant case, the sale has taken place from the depot and, therefore, invoices issued from the depot should have been called for and examined before sanctioning of the refund claim. As per Section 12A of the Central Excise Act, 1944 the assessee has to indicate in the sale invoice or other documents the amount of duty which forms part of the price at which the goods are ....