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2016 (1) TMI 842 - CESTAT MUMBAI

2016 (1) TMI 842 - CESTAT MUMBAI - TMI - Entitlement to Refund claim denied - whether the duty has been paid twice on the scrap and if so whether the appellant is entitled to the refund claim or not? - Held that:- On the one hand the appellant is stating that the scrap only came back from job workers premises; that the enclosed invoices indicating that the removal has taken place under the assessee’s own premises. The commissioner also observed that the appellant has admitted to have indulged in .....

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his appeal is directed against Order-in-Appeal No. APK/08/NSK/2010 dated 14.01.2010 passed by the Commissioner of Central Excise (Appeals), Nashik whereby the refund claim of the appellant is rejected by upholding the Order-in-Original. 2. The appellants are engaged in the manufacture and sale of excisable goods namely motor vehicle parts falling under chapter 87 and 72 of the first schedule to Central Excise Tariff Act, 1985. Appellant sent material for job work to M/s. Mahindra Ugine Steel Co. .....

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the same scrap one by the appellant and one by the job worker. Thus appellant has filed refund claim for such duty paid erroneously. A show-cause notice dated 28.01.2009 was issued to appellant asking them as to why refund claim of ₹ 149,223/- filed on 27.11.2008 should not be rejected under the provisions of Section 11B of Central Excise Act, 1944. Appellant filed reply to the show-cause notice and the Adjudicating Authority vide order dated 18.03.2009 rejected the refund claim thereafte .....

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l manufacturer on scrap generated on job workers premise irrespective of whether job worker has paid the duty or not. In support of his argument, he relied upon the following judgments: a) International Tobacco - 2004 (165) ELT 314 (T) b) Silicon Cortec - 2004 (166) ELT 473 c) Rocket Engg. Corpn. - 2005 (191) ELT 483 d) Preetam Enterprises - 2004 (173) ELT 26 e) Rocket Engg. Corpn. - 2006 (193) ELT 33; upheld by Bombay High Court 2008 (223) ELT 347 f) Alucast Foundries P. Ltd. 2008 (89) RLT 244 .....

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hence the incidence of duty was not passed on. Appellant also produced a number of documents before the lower authorities but both the authorities rejected the refund claim on number of grounds as mentioned in para 6 of the impugned order. 5. On the other hand, ld. AR reiterates the finding of the Commissioner. 6. Heard both sides. 7. The only question to be decided by me is whether the duty has been paid twice on the scrap and if so whether the appellant is entitled to the refund claim or not. .....

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of CESTAT s decision in the case of M/s. Rocket Engineering Corporation Ltd. Vs. CCE reported in 2006 (193) ELT 33 (Tri-Mum). The claim was however, rejected on following grounds: (i) that the enclosed invoices indicate that the removals have taken place under the cover of assessee s own invoices and from the own premises located at Plot no. E-67/68, MIDC, Ambad, Nashik. (ii) the invoices prepared by appellant do not show double payment of duty; (iii) Disclaimer certificate given by job worker o .....

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