ORDER
P.S. Bajaj, Member (J).
1. Heard.
2. The appeal raises arguable points and is admitted. In my view, the appeal itself can be decided as the controversy in the appeal lies in a narrow compass.
3. The only issue involved in this appeal which has been directed against the impugned order-in-appeal passed by the Commissioner (Appeals) relates to the applicability of doctrine of unjust enrichment to the refund claim of the appellants.
4. I have heard both sides and gone through the record. The admitted facts, as even alleged in the show cause notice, are that the Social Security Cess was paid by the appellants in lumpsum and it was not firstly charged by them from the buyers and then paid. They themselves had borne the burden of this cess. It had no connection with the assessable value of the goods cleared by them to the buyers. The adjudicating authority rejected their refund claim, out the Commissioner (Appeals) allowed the refund and directed that the same be deposited in the Consumer Welfare Fund as the appellants had passed on the incidence of this cess to the buyers.
5. The impugned order of the Commissioner (Appeals) on the face of it runs contrary to the allegations made in the show cause notice itself. In the show cause notice it has been alleged that the Social Security Cess was not recovered by the appellants from the buyers and for that reason they did not pay the same at the time of clearance of the goods and that it had no connection with the assessable value charged from the buyers. It has been even further alleged in the show cause notice that the burden of this Cess had been borne by the appellants themselves. In the face of these averments in the show cause notice, the doctrine of unjust enrichment cannot be invoked so as to hold that the incidence of Cess had been passed on by the appellants to the buyers. Moreover, the deposit of the Social Security Cess had been made by the appellants much after the clearance of the goods.
6. In view of the discussion made above, the impugned order of the Commissioner (Appeals) cannot be sustained and is ordered to be set aside. The appeal of the appellants is thus allowed with consequential relief, if any, permissible under the law.