Judgment:
Per Dr. Chittaranjan Satapathy
Heard both sides at length. There is agreement from both sides that the impugned goods initially transferred from the respondent s factory to the depot has to be assessed on the basis of the price prevailing at the depot on the date the clearance is made from the factory. The respondents have claimed refund on the ground that they have paid duty on higher value at the time of clearance during the impugned period. However, the details of value on which duty is paid and the value on which duty is payable in respect of each consignment has not been furnished by the respondents to the authorities below nor is the same available for perusal of the Bench today. In the absence of such details, the calculation and verification of the refund amount claimed is not possible. Hence, we are of the view that the order passed by the lower appellate authority granting refund in the absence of such details is not appropriate. Hence, we set aside the impugned order and remand the matter with a direction that the respondents shall furnish necessary details to the original authority who shall thereafter verify the refund claim filed by the respondents for sanction. It goes without saying that the respondents shall be given an adequate opportunity of hearing before passing a fresh order.
2. Shri K.S. Venkatagiri, learned counsel has also pleaded that while granting the refund the original authority should not apply the principles of unjust enrichment since the duty has been paid on higher value and the impugned goods have been sold on the lesser value as has been held in the following cases:
(i) CCE, Visakhapatnam Vs. Andhra Pradesh Paper Mills Ltd. 2006 (198) ELT 237
(ii) Malwa Cotton Spinning Mills Ltd. Vs. CCE, Chandigarh 2008 (224) ELT 425
(iii) Wep Peripherals Ltd. Vs. CCE, Hyderabad 2007 (213) ELT 18
3. In this regard we are of the view that the issue of unjust enrichment is not before us and no such direction as prayed for by the respondents can be given to the original authority while remanding the matter. However, the original authority is directed to keep the ratio of the decisions cited while deciding the claim of refund as well as the Chartered Accountant’s certificate produced by the respondents indicating that the higher duty incidence has not been passed on by the respondents to their customers. It would also be in the interest of respondents to file a copy of the balance set before the original authority so that he can examine the question of applicability of unjust enrichment to the present case according to law. The Revenue’s appeal is allowed by way of remand in the above terms.