2. Learned Counsel for the Appellant submitted that when the Appellant was a small-scale industry and not liable to tax, and as well-established by the learned Adjudicating Authority that the incidence of duty was not passed to any consumer, disturbing the Adjudication Order is only an abuse of the process of law. It was also submitted that learned Commissioner has not at all considered rationality of accounting, but whimsically made his observation in para 8.0 of the impugned Order demolishing the piece of evidence which was vitally considered by the learned Adjudicating Authority. Therefore, the impugned Order has no legs to stand.
3. On the other hand, the learned J.D.R. submitted that the learned Commissioner only made an effort to examine whether there was any unjust enrichment by the Appellant. For that reason, notice was issued which was well within the time-limit and that aspect was examined.
Therefore, his conclusion drawn in the Order is not liable to be disturbed.
4. This appeal is against the Revision Order passed under Section 84 of the Finance Act, 1994 (here-in-after referred to as 'the Act'). To protect the interest of Revenue, any Order passed, which is prejudicial to the interest of Revenue, is liable to be revised under that Section by the Commissioner of Central Excise. To do so, the Show-Cause Notice has to bring out clearly the proposition as well as the documents relied upon and the documents liable to be discarded. Perusal of the Show-Cause Notice dated 19.10.04 does not throw light the manner in which Revenue was prejudiced and why Chartered Accountant's Certificate which was considered to be the best piece of evidence by the learned Adjudicating Authority, was liable to be discarded. The entire Revisional Order was passed discarding Chartered Accountant's Certificate giving no scope to the Appellant to lead its defence for such valuable piece of evidence thrown out of consideration. Further, it was observed that the manner how the unjust enrichment could be conceived by the Revisional Authority, is also not patent from the Show-Cause Notice. The revisional power being a very crucial power to be exercised, the notice for such revision should be issued bringing out the allegation without any ambiguity. Learned Commissioner failed to appreciate as to how an expenditure being charged to Profit and Loss Account gives light to the position of passing of the incidence of duty to the ultimate consumer. According to the normal accounting principle, any expenditure charged to Profit and Loss Account reduces the profit of a Concern without demonstrating the transferred burden of tax to the ultimate consumer. In absence of any clear-cut basis to throw light how the incidence of duty was passed on to the customer, following the judgment in the case of Solar Pesticides 5. In view of the observations aforesaid and considering learned Counsel's submissions as well as looking to the gamut of the transaction and the law applicable, nothing transpires to hold that there was any unjust enrichment which was ignored by the learned Adjudicating Authority for upholding the impugned Order.
6. In the result, the appeal calls for allowing the same without any hesitation. It is ordered accordingly.