CCE Vs. P.A. TIME INDUSTRIES

JUDGEMENT

(1.) Heard both sides.

(2.) In these appeals, the Revenue has questioned the correctness of the impugned order is common in both the appeals. The issue relates to the applicability of principle of unjust enrichment to the refund claim preferred by the respondents. The adjudicating authority rejected the refund claim by invoking this principle after observing that the incidence of duty was passed on to the ultimate consumers but the learned Commissioner (Appeals) has reversed that order by following the ratio of law laid down in Swarup Fibre Industries Ltd. v. CCE and Modi Xerox ltd. v. CCE 1999 (35) RLT 77 wherein it has been observed that if there is no increase in the price structure by the assessee even after payment of duty, it could lead to infer that the incidence of duty was not passed on to the ultimate consumers. But the ratio of law down in these cases stands already over -ruled by the Apex Court in the case of CCE, Mumbai -II v. Allied Photographics India. Therefore, on the face it, the order of the Commissioner (Appeals) is not sustainable.

(3.) However, in our view, the matter deserves to be re -examined in the light of the above referred decision of the Apex Court after affording an opportunity of hearing to the respondents who will be at liberty to adduce any evidence they wished for proving non -passing of the incidence of duty to the ultimate buyers.