TMI Blog2003 (6) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... It is seen that the dispute regarding the excisability of waste and scrap was going on between the Revenue and the respondents for quite some time and the same attained finality by the Order of the Assistant Commissioner, Berhampore dated 25-4-94. The said Order was accepted by the Revenue and it was held that such waste and scrap was not excisable. Thereafter, the appellants filed a refund claim of duty paid by them under protest during the period in question. The said refund claim was rejected by the Assistant Commissioner on the ground of unjust enrichment. 3. On appeal against the above Order, the Commissioner (Appeals) accepted the respondents stand that their buyers got a firm price of Rs. 69.00 per Kg. for the scrap declaring not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise Duty. Learned Advocate also submits that they were paying the Excise Duty from their own pocket, inasmuch as their customers have not paid them any amount on account of duty. He clarifies that they continued to sell the product at the same rate of Rs. 69.00 per Kg., even after the waste and scrap was held to be non-excisable. This fact, by itself, shows that the duty was being paid by them out of their profit margin. Reliance has also been placed upon the Tribunal s decision in the case of CIMMCO Ltd. v. Collector of Central Excise, Jaipur reported in 1999 (107) E.L.T. 246 (Tribunal) wherein it was held that even when the assessee was taking a stand as regards the non-excisability of the goods a clause in the contract to the effect th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents wanted to avoid a future demand and out of the total selling price, a portion was being deposited by them to take care of any eventuality. As against the above finding, we do not find any evidence in the appeal to the contrary. In their Grounds of Appeal, they have only reiterated the law laid down by the Hon ble Supreme Court in the case of Mafatlal Industries (referred supra). There is no dispute about the above legal position. However, in the facts and circumstances of the case, the respondents have succeeded to establish that the duty-burden was being borne by them and the duty was being deposited by reducing their profit margin. The respondents continued to sell their goods at the same price, even after the waste and scrap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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