- (1.) This appeal is directed against the judgment and order passed by the Division Bench of the Karnataka High Court on 7.12.2009 whereby the High Court after setting aside the orders passed by the Tribunal and other authorities, remitted the entire disputes to be considered by the Adjudicating Authority and then to record a finding with regard to the fact as to whether or not the incidence of duty has not been passed on to the customers by the Appellant herein for considering the refund claim of the Appellant.
(2.) The aforesaid findings and the conclusions have been recorded by the Tribunal after analyzing the fact that a certificate dated 10.5.2001 issued by the Chartered Accountant was produced before the Adjudicating Authority but subsequently another certificate was produced which is dated 17.6.2002 issued by another Chartered Accountant, namely, Sh. Om Prakash, which is subsequent to the order of Adjudicating Authority. Consequently, the High Court held that since the subsequent certificate, which was pressed into service before the Tribunal, was admittedly not : available before the Adjudicating Authority and, therefore, the matter has to be remitted back for fresh and de novo consideration. It is not disputed that the said particular piece of evidence was not before the Adjudicating Authority and was placed for the first time before the Tribunal.
(3.) Counsel appearing for the Appellant, however, submits that the aforesaid report dated 17.6.2002 is a cost analysis certificate which analyzes the earlier certificate dated 10.5.2001 and, therefore, it could not have been said that fresh evidence is being led by the Appellant. Counsel appearing for the Appellant further submits that one model, namely, Family Saloon Model, manufactured by the Appellant is covered by the aforesaid cost analysis certificate and therefore, if at all there is a case of remand, such remand should have been restricted to the other models manufactured by the Appellant except for Family Saloon Model which dispute is settled by the report of the Chartered Accountant dated 17.6.2002 giving analysis of the earlier certificate.;