TMI Blog2018 (12) TMI 431X X X X Extracts X X X X X X X X Extracts X X X X ..... f Central Excise Act, 1944, the refund under the mandate of said law must pass the test of unjust enrichment. Appeal allowed by way of remand to reconsider the issue afresh. - Appeal No. E/1148/2010-DB - A/12715/2018 - Dated:- 6-12-2018 - Mr. Ramesh Nair, Member (Judicial) And Mr. Raju, Member (Technical) For the appellant: Shri T.G. Rathore, Jt. Commr. (AR) For the respondent: Shri Anand Nainawati, (Advocate) ORDER Per: Ramesh Nair The brief facts of the case are that the respondents cleared the glass manufactured by them on payment of Excise Duty on the price by claiming deduction there from in respect of cost of secondary packing, i.e., Wooden crates for the period April- November 1994. Three Show Caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Show Cause Notice was confirmed. The respondent filed an appeal before Commissioner (A) who vide order SSS/STR/1728 dated 28/09/1998 remanded the matter to the Adjudicating Authority. The respondent stopped paying duty under protest on value of secondary packing after the issuance of Order in Appeal dated 28.09.1999. The respondents filed the refund application for the duty paid under protest for the period March, 1996 to September, 1999. On this matter of refund, a Show Cause Notice dated 16/10/2000 was issued to the respondent proposing rejection of refund claim filed by them for the period March 1996- September 1999. Pursuant to the order passed by Commissioner (A) allowing the appeal of the respondent on the issue of secondary packing, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 35-36/OA/2001 passed by the Deputy Commissioner was set aside by the Ld. Commissioner (Appeals) vide Order in Appeal NO. RS/120-121/SRT-II/2006. Ld. Commissioner (Appeals) also set aside the Order in Original no. 28-32/OA/2001 for the period December 1994 to February 1996 vide his Order in Appeal no. RS/114/SRT-II/07 dated 08.03.2006. The said Order in Appeal dated 08/03/2006 was accepted by the Department. Ld. Commissioner (A) vide Order in Appeal no. RS/116/SRT-II/07 dated 30.03.2007, set aside the Order in Original dated 22/02/2001 rejecting the refund claim and allowed the appeal of the Respondent. Ld. Commissioner (A) held that the department cannot agitate the issue again when order of the CESTAT on merits has been accepted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el appearing on behalf of the Respondent at the outset submits that the issue on merit that whether value of secondary packing is includable in the assessable value of the final product, i.e. Glass, has been settled by the Hon ble High Court of Gujarat in the appellant s own case reported at Commissioner of Central Excise and Customs-Surat-ii Vs. Gujarat Borosil (supra). Therefore, the appellant is entitled for the refund of duty paid under protest on the cost of secondary packing. 4. We have carefully considered the submission made by both the sides and perused the records. We find that after long litigation, the issue in dispute that whether the cost of secondary packing that is, wooden crates is includable in the assessable value of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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