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2016 (3) TMI 396 - AT - Central ExciseDuty on the cut flowers grown and sold in DTA - as the respondent already paid duty on the cut flowers i.e. non excisable goods, whether they are entitle for the refund claim and whether refund claim hit by "unjust enrichment" - Held that:- We find that the cut flowers produced by the respondent is not excisable goods at the relevant time, they were working under Notification No. 126/94-Cus dated 3/6/1994 as amended by Notification No. 56/2001 dated 18/5/2001. In the present case the cut flowers is non excisable goods, by application of above notification the duty require to be paid is equal amount of duty leviable on the input used in the production of cut flowers. In the impugned order, Ld Commissioner has upheld the duty of input like fertilizer, chemical therefore duty over and above this amount is not payable on the cut flowers. The judgment cited by the A.R. are on the issue that what duty is to be paid on the non excisable goods and it was held that duty is required to be paid as per notification no. 126/94-Cus i.e. equal amount of custom duty leviable on input used in the excisable goods therefore we find that Ld. Commissioner(Appeals) has correctly held that the duty of the total duty paid by the respondent of amount of ₹ 18,91,609/- is not payable. This tribunal in another case of Commissioner of Central Excise, Pune-I Vs. Vikram Greentech(I) Ltd [2016 (3) TMI 380 - CESTAT MUMBAI ] held that no duty can be demanded on cut flowers being non excisable goods. As per above legal position, we are of the view that the duty is not chargeable on the cut flowers produced by the respondent. As regard unjust enrichment, we find that the respondent has taken a stand that since duty was not payable, the payment made by them is without authority of law, in such case unjust enrichment is not applicable. The Ld. Commissioner (Appeals) also held that payment made is without authority of law, unjust enrichment is not applicable. We disagree with these submissions as well as findings of the Ld. Commissioner(Appeals) at the time of payment of duty it was paid as excise duty only and refund of the said duty was sought for therefore it cannot be said that duty was paid without authority of law. If the contention of the Ld. Commissioner (Appeals) is accepted then in all the cases where amount paid by the assesee which was not laible to be paid and refund is sought for, the payment will be treated as without authority of law and in such cases the law of unjust enrichment will become redundant. We find that neither the Adjudicating authority nor Ld. Commissioner(Appeals) has verified the documentary evidence produced before us claiming that incidence of duty so paid was not passed on to any other person, we therefore remand the matter to Adjudicating authority to consider all the documents produced/to be produced by the respondent and pass a fresh order only on the aspect of unjust enrichment.
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