ORDER
V.K. Agrawal, Member (T)
1. These are two appeals involving the same issue of rejection of refund claim on account of unjust enrichment and as such are being disposed of by one common order.
2. Shri P.S. Bedi, learned Consultant, submitted that the adjudicating authority had rejected the refund claim filed by the appellants on the ground of unjust enrichment without first deciding that whether refund is admissible or not to the appellants. He emphasised that first the Asstt. Commissioner has to decide the question of admissibility of refund claim under the law and then only the question of unjust enrichment has to be looked into and if there is no unjust enrichment the amount of duty claimed as refund will be given to the appellants and if there is an unjust enrichment the said amount will be credited to the Consumer Welfare Fund. The Government cannot retain money of refund claim with them. He finally mentioned that number of similar orders have been remanded to the Asstt. Commissioner for re-adjudication.
3. Shri Ashok Kumar, learned DR fairly conceded that the Tribunal vide Final Order Nos. 1778-1792/98-B2, dated 17-12-1998 has remanded the matters to the jurisdictional Asstt. Commissioner for physical verification, whether the incidence of duty was shifted by the appellants.
4. We have considered the submissions of both the sides. The Asstt. Commissioner has to give his finding about the admissibility of the refund claim as refund claim cannot be rejected on the ground of unjust enrichment. The ground of unjust enrichment comes into play to decide whether the amount, refund of which is admissible, is to be given to the appellants or it is to be credited into Consumer Welfare Fund. The Asstt. Commissioner has not decided the admissibility of the refund claim. Further the learned Consultant submitted that they had produced their invoices and other documentary evidence to the Department in support of their contention that they had not passed on incidence of duty to their customers. He also mentioned that the rate of duty was specific and as such it cannot be presumed that it formed part of the assessable value. We find substantial force in the contention of the learned Consultant. As the Asstt. Commissioner has only relied upon the gate pass in which amount of duty was mentioned, certainly no excisable goods can be cleared from the factory without cover of gate pass which will also indicate the amount of duty paid. We, therefore, remand both these matters to the jurisdictional Asstt. Commissioner for examining the admissibility of the refund claim and if the refund claim are admissible, examine the evidence produced by the appellants whether the incidence of duty has been passed to the customers and then pass speaking order after affording an opportunity of personal hearing to the appellants. Both these appeals are allowed by way of remand.