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2016 (3) TMI 949 - CESTAT MUMBAI

2016 (3) TMI 949 - CESTAT MUMBAI - TMI - Doctrine of unjust enrichment - refund claim rejected - whether the C.A. certificate is sufficient to establish that there was no unjust enrichment ? - Held that:- The doctrine of unjust enrichment is attracted in the instant case. We find that the appellant had failed to produce any original records before the adjudicating authority and their claim to lack of the unjust enrichment is based solely on the C.A. certificate. It is not understood that how whe .....

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l No. E/3213 & 3686/05 - A/86463-86464/16/EB - Dated:- 10-3-2016 - SHRI S.S. GARG, MEMBER (JUDICIAL) AND SHRI RAJU, MEMBER (TECHNICAL) For the Petitioner : Mr. S. Chandrashekhar, Manager (Excise) For the Respondent : Shri N.N. Prabhudesai, Supdt. (AR) ORDER PER: RAJU The appellants are manufacturer of motor vehicles. During the period 1986 to July, 1992, assessment in respect of gauges was done provisionally. The assessment was finalized by original authority denying the benefit of Notification .....

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of Notification No. 217/86 dated 2.4.1986, I agree that the ratio of the judgement in the case of Telco Vs. Commissioner of Central Excise, Pune - 1994 (70) ELT 75 (Tri) which is applicable in the instant case. However, the eligibility of this notification is depend upon other factors such as the final products should be excisable and the related procedure required to be followed. The Adjudicating Officer may consider these aspects before allowing the benefit of Notification No. 217/86, being a .....

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n/testing of the parts, thus, gauges can be considered as measuring tool. For the purpose of Notification No. 217/86, inputs does not include, machines, machinery, plant, equipment, apparatus, tools or appliances used for product or processing of any goods or for bring about any change in any substance in or in relation to the manufacture of the final product. In the instant case gauges being a measuring tool, the benefit of exemption Notification No. 217/86 would not be available to the product .....

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of Central Excise, Pune - 1994 (70) ELT 75 (Tri) is applicable to the present case. He argued that this order of the Commissioner (Appeals) was not challenged before the Tribunal and therefore, subsequent decision of Assistant Commissioner/Dy. Commissioner cannot go beyond the said observations of the Commissioner (Appeals). 3. Learned AR argued that the gauges are not merely measuring tool but are used in the process of production and, therefore, the decision of the Tribunal in case of TELCO ( .....

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whole of the duty of excise leviable thereon which is specified in the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986); Provided that nothing contained in this notification shall apply to inputs used in or in relation to the manufacture of final products which are exempt from the whole of the duty of excise leviable thereon or is chargeable to nil rate of duty. Explanation. - For the purposes of this notification, inputs does not include - (i) machines, machinery, plant, equipment .....

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e exemption. That the goods are, in this case, covered by the description of inputs in the Table to the Notification, is, as already noted, undisputed. The only question, therefore, is as to the scope of the exclusion under the Explanation. The phrase in or in relation to the manufacture of the final products is common to both the exemption and the exclusion. All the decisions cited by the appellant relate to the meaning of this phrase. Reference to them was unnecessary since there is no dispu .....

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al products . The Tribunal has said that the operative phrases in the exclusion indicated direct or immediate use in actual production or processing of goods or bring about any change in any substance . We agree Some mentioned characteristics. They are, therefore, exempted from payment of excise duty under the 1986 Notification. The aforesaid observation of the Hon'ble Supreme Court came in respect of the decision of the Tribunal relied upon by the Commissioner (Appeals) earlier. Following t .....

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92) Rs.2,90,870/- 2. PLA F No. 7535 dated 02.11.1993 (duty for gauges captively consumed during the period 6.7.92 to 8.7.93) Rs.2,67,243/- The said refund claim was however rejected as the appellant failed to produce any vouchers. Debit/credit note etc. to establish that there was no unjust enrichment. He also held that merely C.A. Certificate is not sufficient to establish that there was no unjust enrichment. 6. The Manager (Excise) of the appellant argued that the C.A. certificate is sufficien .....

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2004 (166) ELT 3 (SC) that even when duty has been paid under protest, the bar of unjust enrichment still needs to be crossed. He also asserted that the doctrine of unjust enrichment are also applicable to captive consumption as has been held by the Hon'ble Supreme Court in the case of Solar Pesticide Pvt. Ltd. - 2000 (116) ELT 401 (SC). 8. It is seen that the Hon'ble Supreme Court in the case of Solar Pesticides (supra) has held that doctrine of unjust enrichment is attracted even in ca .....

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