TMI Blog2014 (11) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute that the goods were cleared to their own unit. Surprisingly in the findings of the Commissioner (A), another ground has been taken that the appellants have cleared the goods under the scheme of area-based exemption which is also totally wrong. Appellant’s unit which cleared the capital goods was not availing in area based exemption and in fact it was the receiver who was availing the area based exemption and therefore could not have taken the credit of duty paid on the capital goods. This is another ground submitted by the learned consultant in support of the refund claim. Even though the capital goods were transferred to their own unit even that unit could not take the credit - appellant is eligible for the refund claim - Decided i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earl Polymers Limited, Solan, Himachal Pradesh, their own unit in terms of rule 3(5) of CENVAT Credit Rules, 2004 under clearance Invoice No.227 dated 20.4.2006 issued in terms of Rule 11 of Central Excise Rules, 2002 on payment of the total aggregate of all the duties they had hitherto availed as credit of CENVAT. On being pointed by the audit team during the course of audit of books of accounts of the appellant by the IAP during July 2007, the appellant the ineligible excess CENVAT credit being the equivalent of BCD amount of ₹ 5,62,500/-, education cess amount of ₹ 64452/- along with interest amount of ₹ 1,17,647/- accepting that the credit of BCD/Cess has been availed by oversight. Further, during the course of appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to one self. Therefore it cannot be said that the duty liability has been passed on to someone else. Therefore the denial of refund on the ground of unjust enrichment cannot be sustained. There is also no dispute that the goods were cleared to their own unit. Surprisingly in the findings of the Commissioner (A), another ground has been taken that the appellants have cleared the goods under the scheme of area-based exemption which is also totally wrong. Appellant s unit which cleared the capital goods was not availing in area based exemption and in fact it was the receiver who was availing the area based exemption and therefore could not have taken the credit of duty paid on the capital goods. This is another ground submitted by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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