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2015 (10) TMI 1368 - CESTAT MUMBAI

2015 (10) TMI 1368 - CESTAT MUMBAI - 2015 (329) E.L.T. 612 (Tri. - Mumbai) - Denial of refund claim - duty was paid under protest on sizing of yarn - Captive consumption - appellant had not produced any evidence to establish that the incidence of duty has not been passed on directly or indirectly to any other person - Held that:- Duty was paid on sizing of yarn and such sized yarn used in the manufacture of fabric which has been exported. The refund of duty either paid on the exported goods or o .....

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yarn which has been used in the manufacture of fabric and the said fabric was exported out of India, therefore duty so paid on sized yarn is clearly rebatable under Rule 18 and in accordance with clause (a) of first proviso to subsection (2) of Section 11B, the bar of unjust enrichment is not applicable. Therefore without going into the facts whether incidence of such duty has been passed on or otherwise refund of duty is admissible. In view of the above undisputed and unambiguous position in l .....

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rder-in-original and rejected the appeal of the appellant. The fact of the case is that the appellant is engaged in the manufacture of yarns, man made fabric and cotton fabrics falling under Chapter 52, 54 & 55 of CETA, 1985. The appellant filed refund claim of ₹ 1,11,220/- consequent to the dropping of demand on sizing of yarn by order-in-original No. H/Addl/7 to 19/2000 dated 28/7/2000. The said duty was paid under protest on sizing of yarn, captively used in the manufacture of Inter .....

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pellant on the ground that the appellant has not produced any proof of incidence of duty, for which refund was sought for, has not been passed on to any other person. Aggrieved by the said order-in-appeal dated 15/9/2001 the appellant preferred appeal before the CESTAT, Mumbai, who vide Order No. A-341/C-IV/WZB/04 dated 20/4/2004 set aside the order of Appellate Commissioner and remanded the case to Adjudicating Authority for denovo adjudication on the ground that the appellant had now produced .....

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d before the Commissioner (Appeals) who rejected the appeal vide the impugned order therefore the appellant is before me. 2. Shri. Vinay Sejpal, Ld. Counsel for the appellant submits that at the stage of initial proceedings they were taking stand that since duty was paid under protest therefore bar of unjust enrichment is not applicable. He submits that in view of the earlier Tribunal's order, appellant produced all the documents showing that incidence of duty paid on sizing of the yarn was .....

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as been passed on or otherwise refund is admissible without going into such facts as the provisions of unjust enrichment is not applicable in respect of duty paid either on the final product which is exported or on the material which is used in the manufactured goods. Therefore on both the counts i.e. incidence of duty has not been passed on to any other person as well as on legal matrix, the refund is admissible. 3. On the other hand, Shri. Ashutosh Nath, Ld. Asst. Commissioner (A.R.) appearing .....

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mmissioner of C. Ex vs. Elgi Ultra Industries [2002(146) E.L.T. 396 (Tri-Chennai)] In view of the above judgments his submit that the appellant is under obligation to prove that incidence of duty has not been passed on to any other person, then only refund can be granted, which appellant has failed to prove, therefore refund was rightly rejected by the original authority and upheld by the Commissioner (Appeals), accordingly he prays for dismissing the appeal. 4. I have carefully considered the s .....

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here any goods are exported, the Central Government may, by notification, grant rebate of duty paid on such excisable goods or duty paid on materials used in the manufacture or processing of such goods and the rebate shall be subject to such conditions or limitations, if any, and fulfillment of such procedure, as may be specified in the notification. From the above Rule 18, it is clear that in case of export of goods the rebate of duty not only paid on exported goods but also on material used in .....

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such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collect .....

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Act; Provided further that the limitation of one year shall not apply where any duty and interest, if any, paid on such duty has been paid under protest. (2) If, on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credi .....

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