2015 (2) TMI 305

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....he burden of unjust enrichment was not passed by the appellant. As appellant has not challenged the said order and failed to prove that they have not passed the incidence of duty to the buyer, therefore they are not entitled to refund claim as made by the appellant. Aggrieved from the said order, appellant is before me. 2. The ld. counsel appearing on behalf of the appellant submits that assessment for the Financial year 2002-2003 was finalized on 15.01.2004. Thereafter the show cause notice was issued to the appellant on 29.10.2004 for the same period. In these circumstances, the order dated 15.01.2004 becomes non est and non operative. Therefore, they are entitled for the refund claim filed by the appellant as the impugned orders have ....

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.... the Honble Apex Court in the case of Priya Blue Industries Ltd. Vs. C.C. (Preventive)-2004 (172) E.L.T. 145 (SC) and in the case of C.C.E. Kanpur Vs. Flock (India) Pvt. Ltd.-2000 (120) E.L.T. 285 (SC). Therefore, the refund claim is rightly rejected by both the lower authorities. 4. Heard the parties and considered the submissions. 5. In this case it is no doubt that assessment has been finalized upto spindle stage on 15.01.2004. Thereafter, the show cause notice was issued to the appellant for the same period although on some other ground. It is the contention of the appellant that when assessment has been reopened for the said period, the appellant is entitled to raise all the issue before the Adjudicating Authority although they h....

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....fication before the Collector and the Collector dealt with the same. Also, even though an assessee may not contest the correct rate of duty on a commodity cleared by him earlier, whenever the Department seeks to reopen the assessment and demands differential duty for whatever reasons, it is open to the assessees to contest the demand of the higher differential duty with an argument that the rate of duty originally applied was wrong. Even if the allegations against them in the proceedings are found to be correct the quantum of differential duty to be paid by them can be questioned. The Tribunal simply cannot shut out such an argument of the appellant on the ground that he has not raised the dispute regarding the rate of duty until the procee....