TMI Blog2015 (10) TMI 1368X X X X Extracts X X X X X X X X Extracts X X X X ..... 1B of Central Excise Act, 1944, it is clear that the provision of unjust enrichment is not applicable in respect of rebate of duty of excise paid on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India. Duty paid in respect of sized 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er-in-Appeal No. KKS(56)56M-IV/2001-R dated 15/9/2001 rejected the appeal of the appellant 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 before the Hon'ble CESTAT, copies of the AR-4s, the export invoices, and the Bank Realization Certificates, indicating that the duty paid on sizing portion was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ither 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 on behalf of the Revenue reiterates the findings of the impugned order. He further submits that the refund is in respect of duty paid on sizing of yarn and since it is not paid on fabric, which are exported, unjust enrichment is applicable. He placed reliance on following judgments: (a) Western Coalfields Ltd. vs. CESTAT, New Delhi [2013(288) E.L.T. 203 (BOM) (b) C.C. (Import), Mumbai vs. Forever Livi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at in case of export of goods the rebate of duty not only paid on exported goods but also on material used in the manufacture of exported goods is allowed. Further the issue whether unjust enrichment is applicable in respect of duty paid on the material which has been used for export goods, relevant Section 11B has been referred, which is reproduced below: SECTION 11B . Claim for refund of duty and interest, if any paid on such duty- (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sistant Commissioner of Central Excise or Deputy Commissioner of Central Excise under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant's account current maintained with the Commissioner of Central Excise; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; (d) the duty of excise and interest, if any, paid on suc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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