2018 (12) TMI 242 – CESTAT HYDERABAD – TMI – Refund claim – provisional assessment – unjust enrichment – applicability of precedent decisions – Held that:- The adjudicating authority has ventured into the merits of the matter, to hold that the refund claim is hit by unjust enrichment, without considering the fact that the Tribunal’s order is binding on him unless set aside by higher judicial forum.
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Since the refund claim filed by the respondent in this case has arisen out of the consequential relief granted by the Tribunal by order dated 04.05.2016, and that the said order holding the field are not set aside, and that appeals were filed were withdrawn would mean that the Tribunal’s order holds good and the adjudicating authority is required to follow the judicial discipline and should sanction the refund claim to the respondent and not to credit to consumer welfare fund.
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Appeal dismissed – decided against Revenue. – Appeal No. E/30566/2018 – A/31491/2018 – Dated:- 28-11-2
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(arrived at after finalisation of assessments) and accordingly allowed the appeal, with consequential relief. On obtaining such order, the respondent filed an application for the refund of the amounts involved on 14.07.2016. The adjudicating authority in the case in hand, by his adjudication order went into the merits of the case and held that respondent is not eligible for the refund of the amounts as the issue is covered by the judgment of the Apex Court in the case of CCE, Madras Vs Adison & Company Ltd [2016 (339) ELT 177 (SC)]. Aggrieved by such an order, an appeal was preferred before the first appellate authority. The first appellate authority after following due process of law, in the impugned order held that the respondent is eligible for the refund of the amounts as these refunds are arising as consequential relief, on a decision by Tribunal holding in respondent s favour on merits. He also went into the judgment of the Apex Court in the case of Adison & Company Ltd
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ate of Andhra Pradesh in the case of CCE, Visakhapatnam-II Vs Andhra Pradesh Paper Mills [2018 (361) ELT 409] has held that Apex Court s judgment in the case of Adison & Co. Ltd (supra) is applicable and the burden of the duty if passed on to the final consumer, the doctrine of unjust enrichment applies, he also brings to my knowledge the judgment of this Bench in the case of CCE & ST, Hyderabad-II Vs Sirpur Paper Mills Ltd [2018 (360) ELT 544] and submits that Bench has taken the same view. 5. Learned counsel appearing for the respondent brings to my notice that the first appellate authority in Para 7 of the impugned order has categorically recorded that the adjudicating authority has not considered the fact that the refunds have arisen as a consequential relief by the order passed by the Tribunal on 04.05.2016. It is his submission that after recording clearly and holding on this ground that appeal needs to be allowed, the first appellate authority further went into the detai
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of the respondent herein and the Bench has categorically recorded that the appeals are allowed with consequential relief. In pursuance of such an order, respondent herein filed a refund claim for the amount. The adjudicating authority, in my view, has ventured into the merits of the matter, to hold that the refund claim is hit by unjust enrichment, without considering the fact that the Tribunal s order is binding on him unless set aside by higher judicial forum. In my view, the first appellate authority in Para 7 has correctly held so, which requires reproduction. 7. It is clear from Para 3 of the impugned order that the refund arises from a favourable order passed by the Tribunal, which has been challenged by the department before the High Court, who admittedly did not stay the operation of the Tribunal ruling. I have perused the Tribunal ruling leading to the refund, wherein the Tribunal examined the identical dispute where refund was denied on the ground of unjust enrichment; and u
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