Page 132 - ELT_15th August 2020_Vol 373_Part 4

466 EXCISE LAW TIMES [ Vol. 373

He then states at para 24 that ‘the decision of the Hon’ble CESTAT is neither support-
ed by any statutory provision nor by any case law’. These statements are unaccepta-
ble and unbecoming of an Assessing Authority, who is to give effect to the order
of the superior Authority and not stand in judgment over the same. In fact, the
order of the CESTAT has, admittedly, been accepted by the Department as may
be seen from the impugned order itself, at paragraph 15 thereof, where reference
is made to communications of the Commissioner of Customs, Trichy dated
23-11-2017 and 1-12-2017 to such effect.
6. The observations of the Full Bench of the Supreme Court in Union of
India and Others v. Kamlakshi Finance Corporation, 1991 (55) E.L.T. 433 (S.C.), re-
garding judicial discipline would be applicable on all focus in the present case.
The Bench at paragraph 8, states as follows :
8. We have dealt with this aspect at some length, because it has been
suggested by the Learned Additional Solicitor General that the observations
made by the High Court, have been harsh on the officers. It is dear that the
observations of the High Court, seemingly vehement, and apparently un-
palatable to the Revenue, are only intended to curb a tendency in revenue
matters which, if allowed to become widespread, could result in considera-
ble harassment to the assessees-public without any benefit to the Revenue.
We would like to say that the department should take these observations in
the proper spirit. The observations of the High Court should be kept in
mind in future and the utmost regard should be paid by the adjudicating
authorities and the appellate authorities to the requirements of judicial dis-
cipline and the need for giving effect to the orders of the higher appellate
authorities which are binding on them.
7. Be that as it may, and quite apart making the above unwarranted
statements/observations the Assessing Officer has not adverted to the issue on
hand as directed by the CESTAT. The CESTAT has, in conclusion, noted the
submission of the petitioner that the entire sales of Palmolein oil had been com-
pleted in August 2001 itself, and the differential duty remitted, under protest, in
September, 2001. It is in this context that the CESTAT states that documents in
support of the aforesaid submission be examined by the Authority to convince
himself that the incidence of duty has not been passed on to the consumer. Re-
grettably, the Assessing Authority has completely lost sight of this exercise and
has proceeded merely on the basis of accounting entries, the methodology of ac-
counting followed by the petitioner and as to whether the duty had been reflect-
ed in the ‘receivables’ or ‘profit and loss’ accounts.
8. Mr. Srinivas requests that the matter be remanded to enable the au-
thorities to carry out this exercise now. However, I am not inclined to accept this
request in December, 2019 in relation to transactions of the year 2001, particular-
ly, when the officer is seen to have been remiss in his approach to the issue. The
facts as noted by the Authority are itself clear to establish the position that inci-
dence of duty has not been passed on to the customer. At paragraph 22, the of-
ficer sets out the facts as follows :
22. I have gone through the documents submitted by the importer.
The main issue to be decided is whether the doctrine of unjust enrichment
is applicable in respect of the amount of refund claimed by the importer.
The imported quantity under Ex Bond Bills of Entry Nos. 06 to 08/2001,
dated 3-8-2001 and 09/2001, dated 4-8-2001 is 2471.788 MTs. The copy of
the sale Register produced by the importer shows that a quantity of
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