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2015 (1) TMI 722 - AT - Central ExciseRefund claim - refund claim for the duty paid by M/s. Patel Stationers Pvt. Limited on the mixture of natural Graphite and natural Bentonite (clay) for the period March 2006 to December 2006 - adjudicating authority rejected the refund claim on the ground that mixture of natural Graphite and natural Bentonite (clay) is excisable and M/s. Patel Stationers Pvt. Limited has rightly paid the duty - Held that:- On perusal of the records, it is revealed from the order of the Commissioner (Appeals) that the ‘mixture of graphite and clay’ is not bought or sold in the market. The ld. Advocate submits that this mixture has a short life and used captively in the manufacture of pencil lead which attracts ‘Nil’ rate of duty. The Commissioner (Appeals) observed that the appellant availed the exemption notification and, therefore, it will be treated as excisable goods. In this context, the ld. Advocate contended that, inadvertently, they availed exemption notification and thereafter they contested the excisability of the goods. It is well settled that no product is ‘goods’ unless shown to be marketable by the department. In the case of United Phosphorous Ltd. (2000 (4) TMI 38 - SUPREME COURT OF INDIA), the Hon’ble Supreme Court observed that mere specification in the Dictionary, Excise Tariff and Drawback Schedule is of no consequence. - The lower authorities should have examined the issue on unjust-enrichment and the appellant should be given an opportunity to substantiate their case on the eligibility to refund claim and on unjust-enrichment. - Decided in favour of assessee.
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