TMI Blog2016 (7) TMI 1113X X X X Extracts X X X X X X X X Extracts X X X X ..... 023/2010 - Final Order No. A/30539-30540/2016 - Dated:- 21-6-2016 - Ms. Sulekha Beevi, C.S., Member (Judicial) and Mr. Madhu Mohan Damodhar, Member (Technical) Shri B. Venugopal and Shri P. Dwarakanath, Advocates for the Appellant Shri S. Prasada Rao, AR for the Respondent. ORDER Breif facts: The appellants are registered manufacturers of Metalized films falling under Chapter Heading 39 of the first schedule to the Central Excise Tariff Act, 1985. A customer of the appellant namely M/s Ravi Foods Pvt. Ltd. was holding Duty Free Import Authorization (DFIA) and got the same invalidated by the Joint Director General of Foreign Trade in favor of the appellant for procurement of Aluminium Metalized BOPP film. Based on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , he also rejected the refund claim on the grounds of limitation as well as unjust enrichment. 3. Aggrieved by the impugned order the appellant preferred an appeal before the Hon'ble Commissioner(Appeals) Hyderabad who vide his, Order-in-Appeal No. 12/2010(H-lll) dated 28-05-2010 set aside thy rejection of the refund claim on account of limitation and unjust enrichment by the lower authority but however, upheld the rejection of the refund claim on the ground that Notification No.44/2001-CE(NT) did not cover goods cleared against invalidated DFIA and moreover, the procedure prescribed under the said Notification also has not been complied with. Aggrieved by the above order-in-Appeal, the appellant is preferring this appeal. 4. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y are very much entitled to benefit of notification no. 43/2001-CE(NT) and that mere non compliance of procedural requirement cannot be a reason to deny substantive benefit. They have relied upon the decisions rendered in Murli Agro Products Ltd. vs. CCE , Nagpur 2005 (183) ELT (Tri-Dei) and CCE Jaipur vs stainless India Ltd 2008(222) ELT 210 (Tri-Dei). However, we observe that in both these cases the assessee therein had cleared goods in terms of notification 43/2001 which is not the situation in the case at hand. In this regard the following finding of the original adjudicating authority clearly explains why the appellant is ineligible for benefit under either 44/2001 or 43/2001. The Board has specified two notifications under sub-r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicates that he has perused copies of invoices and other documents ,declaration of Ravi Foods that they had not availed CENVAT credit endorsed by jurisdictional superintendent, ledger extracts of the appellants Ravi Foods etc; and has found payments were made only to the extent of value of goods excluding duty amount involved and that in each invoice duty amount has been deducted from the gross value to arrive at the amounts, payable. We, therefore are of the opinion that the appellate authority s decision with regard to unjust enrichment and time bar is fair and judicious. 10. From the fore going discussions we do not find any reason to interfere in the order in appeal dated 28-05-2010 which has been impugned by both assessee and Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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