Full Judgment
18-5-1995 and hence the basis for claiming the refund. The original authority had found the refunds admissible but denied the refund on the ground of unjust enrichment on the finding that the goods could be sold later on by the respondents. The original authority, however, directed for depositing the refund amount as aforesaid in the 'Consumer Welfare Fund'.
2. Against the aforesaid finding of the original authority, the respondent herein filed an appeal before the lower appellate authority.
The said authority have found that the question of unjust enrichment to the respondents at this stage does not arise because the goods are still lying with them and they have not sold the goods to another person. Therefore, the Order-in-Original was set aside and the refund of the aforesaid amounts has been ordered to be paid to the respondents herein.
3. It is against the aforesaid order of the lower appellate authority that the Revenue has now filed 2 appeals corresponding to each Bill of Entry.
4. At the outset, ld. Advocate Shri L.P. Asthana has submitted that the appeal is not maintainable. The Revenue did not challenge the finding of the original authority regarding the admissibility of refund to the respondents herein, as they did not file any appeal to the lower appellate authority. It is, therefore, submitted by Shri Asthana that the finding of the admissibility of refund by the adjudicating authority has became final. The question before the lower appellate authority was only to the extent whether the burden of duty in the present case has been passed on to the customers or not and whether the appellants (respondents herein) are entitled to the benefit of refund in the event of not having passed on the burden. This finding, he submits has been given in favour of the respondents. There is no appeal by the Revenue against this finding. On the other hand, he submits Revenue has questioned the admissibility of refund on merits urging that the benefit of Notification No. 85/95-C.E., dated 18-5-1995 is not applicable to the respondents' imported goods namely Synthetic Waste because some of the conditions therein have not been fulfilled by the respondents. Therefore the very refund is not admissible. In that view, the impugned order has been challenged. Ld. Advocate submits that since the finding of the admissibility of refund, as already stated by him, has become final, this cannot be challenged by the Revenue at this stage.
5. Ld. JDR Shri R.S. Sangia submits that the original authority has not gone into the question of applicability of Notification No. 85/95-C.E., dated 18-5-1995 it is, therefore, clear that he has not applied his mind to the admissibility of refund vis-a-vis the said notification.
Consequently the lower authority has also not applied its mind. He, therefore, submits that the admissibility of refund vis-a-vis the Notification has remained unnoticed so far.
6. We have carefully considered the pleas advanced from both sides. We are inclined to agree with the submissions of the ld. Advocate, Shri L.P. Asthana. Contention of the ld. JDR that the original authority has not looked into the Notification No. 85/95-C.E., dated 18-5-1995 is not correct. Reference to this is found in second para of Order-in-Original dated 29-12-1995. It is, therefore, clear that he has looked into Notification while giving a finding that the respondents herein are eligible for refund of Rs. 1,69,704/- and Rs. 1,19,918/- in para 3 of said order. This finding was not challenged by the Revenue before the lower appellate authority as rightly pointed out by the ld. Advocate.
Consequently this finding has become final and the Revenue's challenge to this finding in its appeals before the Tribunal is not permissible at this stage. The other finding of 'no unjust enrichment' made by the lower appellate authority has not been challenged by the Revenue in its appeals before us. Consequently the appeals themselves are not maintainable. Hence we dismiss the appeals as not maintainable.
7. Since we have dismissed the appeals stay petitions also get disposed of.