TMI Blog2013 (9) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... ve proof of the fact that duty incidence had not been passed on even though it could be one of the evidences with respect to such a claim – appeal decided against assessee. - APPEAL No.C/933/03 - Final Order No. A/381/2013-WZB/C-I(CSTB) - Dated:- 9-1-2013 - Mr. P. R. Chandrasekharan and Mr. Anil Choudhary, JJ. For the Appellant: Shri. D. H. Nadkarni, Advocate For the Respondent: Shri.V. K. Agarwal, Addl. Comm. (AR) JUDGEMENT Per: P.R.Chandrasekharan 1. The appeal is directed against order-in-appeal No.330/2003-MCH dated 09/09/2003 passed by the Commissioner of Customs (Appeals), Mumbai-I. 2. The appellant, M/s. Bharat Electronics Ltd. filed a refund claim towards excess duty paid on import of a consignment of refrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relies on the decision of the Tribunal in the following cases: a) Pharmacia India (P) Ltd., 2010 (256) ELT 685 (Kar-HC) b) Indo-Swiss Synthetic Gem Mfg. Co. Ltd., 2003 (162) ELT 121 (Mad) c) Jindal Vijaynagar Steel Ltd., 2006 (206) ELT 529 (T) d) Elgithread (India) Ltd. 2006 (199) ELT 486 (T) 4. The Ld. Commissioner (AR) on the other hand submits that the concept of unjust enrichment would apply even in respect of goods captively consumed, whether or not they are capital goods, and relies on the decision of the Hon ble apex Court in the case of UOI Vs. Solar Pesticide Pvt. Ltd., reported in 2000 (116) ELT 401 (SC), Western Coalfields Ltd., Vs. CCE, Kolkatta, reported in 2011 (273) ELT 153 (Tri-Del) and Larger Bench decision in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Government notwithstanding the incidence of tax having already passed on to the purchaser. Difficulty in proving that the incidence of duty borne by the importer has not been passed on to the purchaser of the finished product can be no ground for interpreting Section 27 differently. Therefore, the principle of unjust enrichment incorporated in Section 27 would be applicable in respect of imported raw material and captively consumed in the manufacture of a final product. 5.3 The same decision was followed by the Hon ble apex Court in the case of CC, Chennai Vs. Borax India Ltd., reported in 2001 (134) ELT 11 (SC). The Larger Bench decision of this Tribunal in the case of SRF Ltd. (supra) held that the principles of unjust enrichment woul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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