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2009 (7) TMI 605 - AT - Central Excise100% EOU- Notification No. 22/2003-C.E., dated 31-3-03- The appellant is a 100% EOU engaged in the manufacture of Crabstick. The appellant was procuring Light Diesel Oil (LDO) without payment of duty under CT-3 certificate as per Notification No. 22/2003-C.E., dated 31-3-03. The facility of procurement of LDO without payment of duty under Notification No. 22/2003-C.E., dated 31-3-03 was withdrawn by the Board vide Circular No. 796/29/2004, dated 4-9-04 and it was clarified that 100% EOUs are entitled to avail the input credit on the duty paid on such goods and utilise the credit for payment of duty of DTA clearance and if for some reason, the credit cannot be utilised, the refund can be claimed under Rule 5 of Cenvat Credit Rules. After withdrawal of this facility, the appellants purchased LDO on payment of duty and filed refund claim under Section 11B of CEA, 1944 read with Rule 5 of Cenvat Credit Rules, 2004 of Rs.5,09,359/- which has been rejected on the ground that LDO was excluded from the definition of input and therefore the Cenvat credit in respect of the duty paid LDO procured by the appellant was not available. The Commissioner (Appeals) also observed that the rebate of duty paid on the materials used in export is allowed under Rule 18 of CER, 2002, and since the appellants had not followed the procedure, the appellants cannot claim rebate also. Held that- Section 11B entitles a buyer of the goods also to claim refund if he was not liable to pay the duty or if duty was paid in excess. This aspect has not been considered by either of the lower authorities. Under these circumstances, the duty paid becomes excess duty and consequently the purchaser become eligible to claim the duly subject to the claim having been filed within time and unjust enrichment not being made applicable. Appeal is allowed.
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