TMI Blog2009 (3) TMI 854X X X X Extracts X X X X X X X X Extracts X X X X ..... oncentrated form of pesticides for the purpose of marketing. The respondents filed a refund claim of Rs. 6,55,000/- paid under protest as the process undertaken by them does not amounts to manufacture. By adjudicating order dated 20-11-95 the Asst. Commissioner of Central Excise rejected the refund claim on the ground that the goods produced by them are to be excisable in terms of Board s circular No. 40/2/95-C.E., dated 27th July, 1995. Meanwhile the similar matter went before the Hon ble High Court of Delhi. The Hon ble Delhi High Court held that such process of dilution does not amount to manufacture as reported in 2000 (115) E.L.T. 324 (Del.). Revenue filed appeal before the Hon ble Supreme Court against the order of the Delhi High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rance and, therefore, they have to establish that incidence of duty has not passed on to any other person. He also submits that the Commissioner (Appeals) erroneously proceeded on the basis of earlier Order-in-Appeal dated 4-11-2004 whereby the respondent was allowed to re-credit the amount and not refund the amount. In the present case they have filed refund claim and, therefore, unjust enrichment is applicable. 4. Learned Advocate on behalf of the respondents reiterates the findings of the Commissioner (Appeals). He submits that the respondents originally filed refund claim of Rs. 6,55,000/- which was allowed by the Commissioner (Appeals) vide order dated 4-11-2004. Revenue had not challenged the said order. He further submits that in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner (Appeals) and no appeal was filed. Hence, the said Order-in-Appeal of the Commissioner (Appeals), sanctioning the refund to the respondent, has become final. In the present proceedings, the respondent is only asking, for cash refund of unspent PLA balance amount already refunded to him. Now at this stage, Revenue can not turn around and ask for application of the doctrine of unjust enrichment when they failed to raise this point earlier before the Commissioner (Appeals). Under proviso to Section 11B(2), the clause of unjust enrichment is not applicable to, among others, unspent advance deposits lying in balance in the account current maintained with Commissioner of Central Excise. Hence the lower authority was right in not invoki ..... X X X X Extracts X X X X X X X X Extracts X X X X
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