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Commissioner of Central Excise, Pune-III Versus M/s. Pudumjee Plant Laboratories Ltd Pune

2016 (3) TMI 396 - CESTAT MUMBAI

Duty on the cut flowers grown and sold in DTA - as the respondent already paid duty on the cut flowers i.e. non excisable goods, whether they are entitle for the refund claim and whether refund claim hit by "unjust enrichment" - Held that:- We find that 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. - In the present case the cut .....

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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 Commissioner of Central Excise, Pune-I Vs. Vikram Greentech(I) Ltd [2016 (3) TMI 380 - CESTAT MUMBAI ] held that no duty can be demanded on cut flowers being non excisable goo .....

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missions 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 .....

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d:- 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 .....

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are required to pay duty on the cut flowers which is equal to the custom duty leviable on the cut flowers as if the same is imported into India. However on query from the bench that in the grounds of appeal, the Revenue seeks to demand duty on the imported input consumable used in the production of the cut flowers cleared to DTA, he submits that it is majority of duty of equal to custom duty on the input which is to be levied on the cut flowers. He submits that in the following judgments this ha .....

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Tri. Mum)] (g) C.C.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. Commission .....

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wers is non excisable goods, he submits that the judgment relied upon by the Revenue are not applicable to the facts of the present case for the reason that in case of Horizon Flora India Ltd(supra) which is based on LR Brothers, Indo Flora Ltd. In the said judgment it was clearly held that as per the Notification No. 126/94-Cus dated 3/6/1994 in case of non excisable goods duty is required to be paid on the imported input and not on the value of the cut flowers being non excisable goods. Ld. Co .....

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balance sheet and also fact that in the invoice excise duty was not charged, it was paid subsequent clearance of the goods, incidence of duty has not been passed on. 5. We have carefully considered the submissions made by both sides. 6. We find that 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 notificat .....

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n, manufacture or packaging of such articles), even if not exported out of India, are allowed to be sold in India under and in accordance with the Export-Import Policy and in such quantity and subject to such other limitation 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 n .....

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ation 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 production, manufacture or packaging of such articles), even if not exported out of India, are allowed to be sold in India under and in accordance with the Export-Import Policy and in such quantity and subject to such other limit .....

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t 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 input used in the production of non excisable goods In the present case the cut flowers is non excisable goods, by application of above notification the duty require to be paid is equal amount of duty leviable on the input used in the production of cut fl .....

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rrectly 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 Commissioner of Central Excise, Pune-I Vs. Vikram Greentech(I) Ltd vide Final Order No. A/2454-2458/15/EB dated 8/4/2015 issued on 5/8/2015 held that no duty can be demanded on cut flowers being non excisable goods. As per above legal position, we are of the view that the duty is not chargeable on the cut flowers produced by the respondent. 6.1 As .....

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