ORDER
Archana Wadhwa, Member (J)
1. A short point is involved, as the appellants refund claim was rejected on the ground of unjust enrichment. The appellant were contesting on the price reflected in their invoices, during the relevant period, was in existence before as well as during the subsequent period. Ld. Advocate appearing for the appellants submits that during the relevant period various decisions of the Tribunal supported the view that if the price remained constant through out the period, the same will lead to the conclusion that the duty element has not been passed on to the customers. However, the said view was reversed by the Honourable Supreme Court in the case of CCEx. v. Allied Products Ltd. 2004 166 ELT 3 (SC) laying down that the fact of constant price factor by itself will not lead to inevitable conclusion that the duty element has not been recovered from the customers. Ld. Advocate submits that in as much as the appellants contested on the legal issue, they did not produce any other evidence to show that the duty has not been collected from their customers, for which they need on opportunity to do so.
2. In view of the above statements, I set aside the impugned order and remand the matter to the original adjudicating authority. Needless to say that the appellant will be given an opportunity to put forth with defence and are at liberty to produce the evidence in support of their plea. Appeal is thus allowed by way of remand.