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2016 (8) TMI 445 - AT - Central ExciseRefund claim - Section 11B of Central Excise Act, 1944 - differential duty paid under protest - Duty recovered on molasses contained in the Ethyl Alcohol cleared during March 2005 to April 2005 at the rate of ₹ 1000/- PMT - Captive consumption of molasses - Held that:- the Ld. Commissioner (Appeals) had initially remanded twice to the Assistant Commissioner and on third round allowed the appeal of the respondent giving a clear finding on the fact that the molasses so manufactured, on which the duty at the rate of ₹ 1000/- PMT paid was manufactured during the period December 2004 to February 2005. He also given the finding that there is no manufacturing of molasses from 1.3.2005 to 30.4.2005. From this finding, I do not find any force in the submission of the Revenue that on such production of molasses the duty is payable as per the revised rate of ₹ 1000/- PMT instead of ₹ 500/- PMT which was prevailing prior to 1.3.2005 therefore, I agree with the finding of the Ld. Commissioner and hold that the respondent have paid excess duty on the molasses used captively. Unjust enrichment - Held that:- since the Commissioner (Appeals) given finding on the law point, no verification was done at any stage, on the facts that whether incidence of refund amount has been passed on to any other person or otherwise. As regard other Appeal No. E/1662/2010, it is found that this appeal was filed against the Commissioner (Appeals) order. Since the original order the Assistant Commissioner had sanctioned the refund implementing the earlier Order-in-Appeal dt. 27.2.2009, this appeal proceeding is consequential to the proceedings of appeal No.E/145/2009. Therefore I do no find it necessary to give a separate finding on the Appeal No. E/1662/2010. Both the impugned orders are set aside and the matters are remanded to the original adjudicating authority to verify the aspect of unjust enrichment and to pass a fresh order. - Appeals disposed of by way of remand
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