TMI Blog2009 (12) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... held prior to 10-7-2004. They filed two refund claims one in respect of sugar and other in respect of molasses and in respect of these two refund claims the jurisdictional Asst. Commissioner passed Order-in-Original No. 25(09/05)/R/BCSF/06, dated 23-2-2006 and No. 31 (08/05) R/BCSF/2006, dated 24-2-2006. In these two orders, the Asst. Commissioner while accepting the claim on merit, ordered that the same be credited to the Consumer Welfare Fund as per provisions of Section 11B, as the appellants had passed on the incidence of Education Cess to their customers. The appellants filed appeals before the Commissioner (Appeals) against these orders and both the appeals were disposed of by the Commissioner (Appeals) by a common Order-in-Appeal Nos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner was upheld by the Commissioner (Appeals) s. The Commissioner (Appeals) s order is not correct as molasses had not been sold but had been cleared to another unit of the appellants for use in manufacture of Denatured Spirit. Since there was no sale of molasses, provisions of Section 12B of Central Excise Act would not be applicable. (3) Denatured spirit manufactured out of molasses had been sold by the appellants at the price fixed by the State Government and in view of this there was no scope for the appellants to pass on incidence of Education Cess indirectly to the buyers of the Denatured Spirit. In view of this, bar of unjust enrichment would not apply. In this regard reliance is placed on the following judgments of the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund claim, but they had not applied for the same. Therefore, the Commissioner (Appeals) s order upholding the Asst. Commissioner s order with regard to the refund amount of Rs. 2,10,298/- in respect of sugar is correct. (2) As regards molasses, even though the same was cleared for captive consumption for use in the manufacture of Denatured Spirit, in view of the judgment of the Hon ble Supreme Court in the case of UOI v. Solar Pesticides Pvt. Ltd. reported in 2000 (116) E.L.T. 401 (S.C.), doctrine of unjust enrichment would be applicable and, if the appellants seek refund of the Education Cess, the appellants would have to prove through costing of Denatured Spirit that incidence of Education Cess had not been passed on. The Tribunal in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r with regard to refund claim of Education Cess on sugar is upheld. Accordingly, Appeal No. E/3279 of 2006 is dismissed. 5. As regards Appeal No. E/3278/06 in respect of the refund claim of Education Cess on molasses, the point of dispute that molasses instead of being sold had been cleared for captive consumption for manufacture of Denatured Spirit and it is Denatured Spirit which has been sold to the consumers and that too at prices fixed by the State Government. The appellants first plea is that, since the molasses was not sold provisions of Section 12B would not be applicable. This plea is not acceptable in view of the judgment of the Hon ble Supreme Court in the case of Solar Pesticides Pvt. Ltd. (supra) wherein the Hon ble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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