2012 (9) TMI 30

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....22.4.2008, 171/ CE/Appl/Jal/2007 dated 27.6.2007 and 05/CE/Appl/Jal/2007 dated 16.1.2008 whereby the Commissioner (Appeals) had allowed the refund of duty paid by the respective respondents on HV/LV coils used captively for repairing transformer. 3. The plea of the Department is that fabrication of HV/LV coils do not bring about marketable goods as such, the HV/LV coils admittedly used captively by the respondents for repair of transformers cannot be termed as excisable goods. As such, even if the respondent has paid excise duty while clearing those goods for captive consumption, the respondents would not be entitled for refund under Notification No.56/02-CE dated 14.11.2002. In support of this contention, Shri R.K. Verma, learned A.R. for....

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....ransformers raising demand for excise duty and ultimately the original adjudication order No.04/CE/ADC/JK/06 dated 31.5.06, the jurisdictional Assistant Commissioner of Central Excise confirmed the duty demand of Rs.32,58,775/- along with interest and equal amount of penalty. The appeal preferred by the said respondent against the aforesaid order was dismissed on merit, however, relief was given on the point of limitation. Learned Counsel submits that because of coercion and the pressure of the Department, the respondents cleared HV/LV coils on payment of excise duty, therefore, now the respondents cannot raise the plea that aforesaid goods are not excisable not being marketable commodity. 5. We have considered the rival contentions and pe....

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....2-CE provides for refund of the payment of excise duty and additional excise duty paid by the assessee from his PLA account while clearing the excisable goods. In the instant case we have already concluded that HV/LV coils fabricated by the respondents are not subject to levy of excise duty. That being the case when excise duty was not leviable on the goods, the respondent cannot take the benefit of Notification No.56/02-CE on the plea that he has cleared non-excisable goods on payment of excise duty. Otherwise also we cannot ignore the fact that excise duty paid by the assessee gets passed on to the consumer and the assessee does not suffer financial loss as he gets excise duty back from the buyer. 8. Coming to the plea of the respondent ....