CCE Vs. DIVISIONAL MANAGER,

JUDGEMENT

(1.) THE Revenue filed this appeal against the order -in -appeal No. 95 -ST/BPL/06 dt. 19.12.06 whereby Commissioner (Appeals) directed to refund the amount of Rs. 1,08,109/ - under Section 11B of the Central Excise, 44 alongwith interest.

(2.) THE relevant facts of the case in brief are that the respondent filed a refund application on excess payment of tax. The adjudicating authority sanctioned the refund claim but it was denied on the ground of unjust enrichment. The respondent filed an appeal before the Commissioner (Appeals). The Commissioner (Appeals), allowed the appeal of the respondent.

(3.) LD . DR submits that it is admitted position from the Commissioner (Appeals) order that the respondent did not submit any evidence in support of the unjust enrichment. So, the Commissioner (Appeals) cannot allow the refund claim on the basis of new evidence, which is hit by Rule 5 of Central Excise (Appeals) Rules, 2001. She relied upon the decision of the Tribunal in the case of Mandhana Dyeing v. CCE, Thane .