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2014 (8) TMI 780 - AT - Central ExciseDenial of refund claim - CENVAT Credit - Notification No. 5/94-CE(NT) read with Notification No.14/97-CE(NT), dt.3.5.1997 - whether appellant was eligible to take CENVAT Credit @ 15% of duty paid by the appellant on Naptha or the same was required to be restricted to only 10% of the duty paid as per Notification No.5/94-CE(NT), dt.1.3.1994 as amended by Notification No.14/97-CE(NT), dt.3.5.1997 - Held that:- trade notice that idea of restricting credit to only 10% was that buyer of the concerned inputs had borne the duty incidence of only 10% and the remaining 5% was absorbed by the Public Sector Refineries. In the present proceedings of the appellant Public Sector Refinery has only borne ‘Zero%’ of the duty and the entire duty incidence on Naptha is borne by the appellant under Rule 196 of Chapter X of Central Excise Rules 1944 for not using the inputs for the intended purpose for which the inputs were procured. The provisions of Notification No.5/94-CE(NT), d.3.5.97, as amended, thus will not be applicable. Appellant was liable to credit of duty paid @ 15% and cannot be restricted to 10% as the provisions of Notification No.5/94-CE (NT), as amended are not applicable to the present facts because the entire duty incidence is borne by appellant as per Rule 196 of Central Excise Rules, 1944 and not the Public Sector Refinery - So far as applicability of unjust enrichment is concerned appellant has relied upon CA s certificates to the effect that duty incidence borne by them is not passed on to the buyers. Such a certificate produced by the appellant cannot be brushed aside in the absence of a contrary view of another expert on the subject as appellant has discharged the initial burden of not recovering the duty for which refund is sought. There is no reason to hold in the present appeal as to why CA's certificate produced by the appellant should not be considered as an evidence of non-recovery of amount from the consumers - appellant is eligible to credit of duty paid on Naptha @ 15% under Rule 196 of Central Excise Rules 1944 - Decided in favour of assessee.
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