- (1.) In this reference at the instance of the Department the Appellate Tribunal was directed to prepare a statement of the case and to refer to this Court the following questions viz., - "(i) Whether or not the bar of unjust enrichment will be attracted in a case where duty has been passed on to the buyer of goods not separately as duty but by inclusion in the price as one component of the same? (ii) Whether the learned Tribunal was justified in holding that the bar of unjust enrichment would not be attracted when the price is inclusive of duties and taxes following the case Cimmco Ltd. reported in 1999 (107) E.L.T. 246 (Tribunal)? (iii) Whether the Hon'ble Tribunal was justified in passing the order ignoring the principles of law laid down in the case of Mafatlal Industries reported in MANU/SC/1203/1997 and the findings of the department indicated in the order-in-original."
(2.) As will appear from the statement of facts, the respondent herein submitted two Refund Applications amounting to Rs. 3,53,268/- and Rs. 2,78,124/- to the Assistant Commissioner of Central Excise, Khardah Division, under Section 11B of the Central Excise Act, 1944. The said refund claims arose out of a dispute regarding classification of "Hose Pipe" manufactured by the As-sessee Company and sold to the Indian Railways during the period between 26th February, 1993 and 11th July, 1993. It appears that disputing the payment of excise duty on the said goods, the respondent-company paid the excise duty on the goods supplied under protest. However, after examining the gate passes and bills issued by the respondent Company in respect of the purchase orders placed by the Railways, the Assistant Commissioner upon observing duty element has been shown from the gate passes as also in the bills, found that the duty had been passed on to the consumer in the form of the price charged and accordingly the Refund Applications made by the respondent were disallowed.
(3.) Being aggrieved by the order of the Assistant Commissioner, the respondent company went up in appeal before the Commissioner (Appeals), Central Excise, Calcutta but the Appellate Authority found no ground to interfere with the findings of the Assistant Commissioner.;