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2021 (8) TMI 15 - AT - Central ExciseRefund claim - supply of Low Sulphur High Flash High Speed Diesel (LSHFHSD) to Indian Navy Claiming exemption under Notification No 64/95-CE dated 16.03.1995 at Sr No 3 - refund claimed on the ground that the supplies were made from the stock of goods which were duty paid - principles of unjust enrichment - HELD THAT:- There is not dispute in respect of the admissibility of the refund claim made by the appellant. Both the authorities have conclusively recorded in respect of the duty paid nature of the goods received from the BPCL and also the fact that the goods were supplied to Indian Navy claiming the exemption under Notification No 64/95-CE. Both authorities also have concluded that the refund claim is not hit by the principles of unjust enrichment enshrined in Section 11B of the Central Excise Act, 1944. Both authorities have restricted the refund claim only for the reason that the duty paid goods received from the M/s BPCL were stored in tank No 5, whereas the supplies to Indian Navy were made from tank No 3 and 5. So they ruled in favour of the refund to the extent of supplies made from tank no 5. From the circular No 804/1/2005-CX dated 04.01.2005, it is quite evident post withdrawal of the facility of warehousing, all the petroleum products cleared from refinery are cleared on the payment of duty and hence there cannot be any issue of intermixing of duty paid and non duty paid petroleum products. The circular very categorically states that all the goods stored in the warehouse from 06.09.2004, are to be duty paid. Since all the goods stored in warehouse are duty paid as per the board circular 2004, the ground on which Assistant Commissioner has proceeded is clearly contrary to this clarification issued by the board. Appellant has supplied the goods to Indian Navy under claim of exemption out of the duty paid stock. In case where the entire stock is deemed to be duty paid, then whether the supply is made from tank 3 or 5 is irrelevant. Assistant Commissioner stating that goods received from M/s BPCL were stored only in tank 5 is of no significance as the goods stored in tank 3 also are duty paid. Irrespective of the tank from which supply has been made Assistant Commissioner did not find any reason to restrict the refund claim. Refund allowed - appeal allowed - decided in favor of appellant.
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