TMI Blog2009 (11) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... shok Jindal, J. Shri Bharat Raichandani, Advocate, for the Appellant. Shri S.M. Vaidya, JDR, for the Respondent. ORDER This appeal is against the order of Commissioner (Appeals) rejected a refund of Rs. 6,71,878. This appeal is a second round of litigation. 2. The facts of the case are that the appellants are manufacture of Refined Edible Oil. they also manufactured jars which are captively consumed within the factory and used for packing of refined edible oil. However, the appellants paid Central Excise duty on the said jars captively consumed. The said jars are exempt from payment of Central Excise duty in terms of Notification No. 10/1996-C.E. dated 23-7-19996. 3. Accordingly, they filed refund claim and the same was r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, I set aside the impugned order and remit the case to the adjudicating authority for fresh decision in accordance with law after extending reasonable opportunity of being heard to the appellant. On remand the original adjudicating authority sanctioned the refund claim but credited to Consumer Welfare Fund on the ground that the refund claim is hit by bar of unjust enrichment and the same was upheld by the Commissioner (Appeals). Aggrieved from the same the appellants are before me. 4. Shri Bharat Raichandani, learned Advocate, appeared on behalf of the appellant. He submits that the appellant has produced the audited books of account including profit and loss account and balance sheet showing the said amount of refund as excise refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, the claim of refund is not hit by the bar of unjust enrichment to support this contention he relied on the following case a. Brindavan Tex Processors Pvt. Ltd. v. CCE - 2006 (196) E.L.T. 61 b. CC v. Maruti Udyog Ltd. - 2003 (155) E.L.T. 523 c. Hero Honda Motors Ltd. v. CCE - 2000 (126) E.L.T. 1014 d. Ashiqui Exports (P) Ltd. v. CC - 2008 (221) E.L.T. 67 e. IPCA Laboratories Ltd. v. CC - 2007 (219) E.L.T. 505 f. CC v. Empee Sugar Chemicals Ltd. - 2007 (211) E.L.T. 293 g. Corning S.A. v. CCE - 2005 (192) E.L.T. 355 h. Pinkcity Gem Technologies v. CC - 2007 (217) E.L.T. 40 i. Mohan Sales (India) v. CC - 2003 (158) E.L.T. 667 j. Picasso Exports v. CC - 2004 (173) E.L.T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the price list. (iii) That there was an auditor s certificate certifying that assessee had not passed on the customs duty to the customers. Came to the conclusion that the assessee had not passed on the burden of the customs duty to its customers. This fining is a finding of fact based on evidence which does not call for any interference. Further he relied on CCE v. Flow Tech Power - 2005 (187) E.L.T. 399, on the similar facts this Tribunal held as under :- ...We have gone through the relevant records carefully. On the question of time bar we are also satisfied that the duty has been paid under protest and the question of time bar would not arise. As regards unjust enrichment, the facts reveal that the price was a composite one f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted the refund claim of the appellants and to support his contention. He also placed reliance on the following case laws. 1. 2006 (200) E.L.T. 365 (S.C.) 2. 2000 (116) E.L.T. 401 (S.C.) 3. Not. No. 10/96 4. 2009 (233) E.L.T. 110 (T) 5. 2009(235) E.L.T. 710 (T) 6. 2009 (239) E.L.T. 439 (T) 7. 2009 (238) E.L.T. 680 (T) 8. 2004 (166) E.L.T. 3 (S.C.) 9. 2004 (174) E.L.T. 422 (All). He submitted that in the case of Amrit Paper v. Commissioner of Central Excise, 2006 (200) E.L.T. 365 (S.C.) wherein it was held that Cenvat credit availed while making payment of duty on exempted goods, subsequently exemption under Notification No. 6/2000-C.E. claimed and refund of duty paid sought while suo m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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