TMI Blog2016 (3) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... to be paid is equal amount of duty leviable on the input used in the production of cut flowers. In the impugned order, Ld Commissioner has upheld the duty of input like fertilizer, chemical therefore duty over and above this amount is not payable on the cut flowers. The judgment cited by the A.R. are on the issue that what duty is to be paid on the non excisable goods and it was held that duty is required to be paid as per notification no. 126/94-Cus i.e. equal amount of custom duty leviable on input used in the excisable goods therefore we find that Ld. Commissioner(Appeals) has correctly held that the duty of the total duty paid by the respondent of amount of ₹ 18,91,609/- is not payable. This tribunal in another case of Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uments produced/to be produced by the respondent and pass a fresh order only on the aspect of unjust enrichment. - Appeal No. E/1392/05-MUM - A/85813/16/EB - Dated:- 15-2-2016 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) For the Petitioner : Shri. Ashutosh Nath, Asstt. Commissioner(A.R.) For the Respondent : Shri. S.R. Prabhune, Asstt. General Manager ORDER PER : RAMESH NAIR This Revenue s appeal is directed against Order-in-Appeal No. PIII/070/05 dated 11/2/2005 passed by the Commissioner(Appeals), Central Excise, Pune-III, wherein Ld. Commissioner (Appeals) allowed the appeal in respect of refund of ₹ 18,91,609/-. 2. The issue involved in the present case is that the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .Ex Cus Nashik Vs. Crompton Greaves Ltd[2011(22) S.T.R. 380(Tri. Mumbai)] (h) Green Brilliance Energy P. Ltd Vs. C. C. Ex. S.T. Vadodara-I[2015(325) ELT 351(Tri. LB)] (i) Commissioner of Central Excise, Pune-I Vs. Horizon Flora India Ltd[2015(323) E.L.T. 177(Tri. Mum)] 3.1 On the issue of Unjust Enrichment, he submits that the Ld. Commissioner held that unjust enrichment is not applicable in the case where duty was paid without authority of law however Ld. Commissioner(Appeals) has not dealt with the factual aspect of any documentary evidence. From the findings of the Ld. Commissioner (Appeals) order it appears that the respondent have not submitted any evidence of non passing of incidence of duty for which the refund is so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cut flowers produced by the respondent is not excisable goods at the relevant time, they were working under Notification No. 126/94-Cus dated 3/6/1994 as amended by Notification No. 56/2001 dated 18/5/2001. Relevant portion of both the notification prior to amendment and after the amendment are reproduced below: 5.1 Para 3(a) of the Notification No. 126/94-CUS. during the period of dispute read as under :- Notwithstanding anything contained in this notification the exemption contained herein shall also apply to the said goods which on importation into India are used for the purposes of production, manufacture or packaging of articles and such articles (including rejects, waste and scrap material arising in the course of produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imitation and conditions, as may be specified in this behalf by the Development Commissioner, on payment of duty of excise leviable thereon under Section 3 of the Central Excises and Salt Act, 1944 (1 of 1944) or where such articles (including rejects, waste and scrap material) are not excisable, Customs duty equal in amount to that leviable on the inputs obtained under this notification and used for the purpose of production, manufacture or packaging of such articles, which would have been paid, but for the exemption under this notification, shall be payable at the time of clearance of such articles. From the above paras, it is very clear that though the duty is required to be paid but only equal to the amount of custom duty on the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that payment made is without authority of law, unjust enrichment is not applicable. We disagree with these submissions as well as findings of the Ld. Commissioner(Appeals) at the time of payment of duty it was paid as excise duty only and refund of the said duty was sought for therefore it cannot be said that duty was paid without authority of law. If the contention of the Ld. Commissioner (Appeals) is accepted then in all the cases where amount paid by the assesee which was not laible to be paid and refund is sought for, the payment will be treated as without authority of law and in such cases the law of unjust enrichment will become redundant. We find that neither the Adjudicating authority nor Ld. Commissioner(Appeals) has verified ..... X X X X Extracts X X X X X X X X Extracts X X X X
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