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2016 (8) TMI 445 - CESTAT MUMBAI

2016 (8) TMI 445 - CESTAT MUMBAI - TMI - Refund claim - Section 11B of Central Excise Act, 1944 - differential duty paid under protest - Duty recovered on molasses contained in the Ethyl Alcohol cleared during March 2005 to April 2005 at the rate of ₹ 1000/- PMT - Captive consumption of molasses - Held that:- the Ld. Commissioner (Appeals) had initially remanded twice to the Assistant Commissioner and on third round allowed the appeal of the respondent giving a clear finding on the fact th .....

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therefore, I agree with the finding of the Ld. Commissioner and hold that the respondent have paid excess duty on the molasses used captively. - Unjust enrichment - Held that:- since the Commissioner (Appeals) given finding on the law point, no verification was done at any stage, on the facts that whether incidence of refund amount has been passed on to any other person or otherwise. As regard other Appeal No. E/1662/2010, it is found that this appeal was filed against the Commissioner (App .....

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- Appeals disposed of by way of remand - Appeal No. E/1451/2007 & E/1662/2010 - Dated:- 26-2-2016 - SHRI RAMESH NAIR, MEMBER (JUDICIAL) For the Petitioner : Shri S.V. Nair, Asstt. Commr. (A.R.) For the Respondent : Shri Deepak V. Marne, Cost Accountant ORDER These appeals are directed against Order-in-Appeal Nos. AGS (204)65/2009 dt. 07/09/2009 & AGS(106)13/2010 dated 22.06.2010 passed by the Commissioner (Appeals) Central Excise & Customs, Aurangabad whereby the Ld. Commissioner allowe .....

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ed from the molasses issued for the manufacture of rectified spirit. The department had recovered the duty of molasses contained in the Ethyl Alcohol cleared during March 2005 to April 2005 at the rate of ₹ 1000/- PMT. as the rate of duty on molasses was revised upwards to ₹ 1000/- PMT w.e.f.1.3.2005. The respondent paid differential duty of ₹ 11,81,851/- under protest and subsequently filed refund claim with the department on 26.7.2005 under Section 11B of Central Excise Act, .....

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nst the said OIO by the respondent, the Commissioner (Appeals) Aurangabad again remanded the case back to the Assistant Commissioner, vide OIA No. RKR(28)274/07 dt. 14.1.2008 with the observations that if the molasses were issued prior to 1.3.2005 the appellants have a strong case in the light of Rule 5(2) of Central Excise Rules, 2002. The Assistant Commissioner, Central Excise & Customs in de novo adjudication vide OIO No. 16/Ref/2008 dt. 27.2.2009 once again rejected the refund. Against t .....

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that the appellant had cleared the goods i.e. molasses to themselves and hence passing of the burden does not arise. Being aggrieved by the impugned order, the Revenue is in appeal. 3. Shri S.V. Nair Ld. Assistant Commissioner (A.R.) appearing on behalf of the Revenue reiterating the grounds of appeal submits that respondent had a practice to discharge excise duty on molasses at the time of clearance of the final products as at the time of manufacture of molasses, it cannot be ascertained that h .....

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urt decision in the case of Union of India Vs. Solar Pesticides Pvt. Ltd. 2000 (116) 401 (S.C.) wherein the Honble Apex Court held that even in case of captive consumption the assessee is required to establish that the incidence of duty amount, for which refund is sought for, has not been passed on to any other person. Therefore, the finding of the Ld. Commissioner is clearly against the judgment of Hon ble Supreme Court. 4. On the other hand, Shri Deepak V. Marne. Ld. Cost Accountant, appearin .....

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the respondent giving a clear finding on the fact that the molasses so manufactured, on which the duty at the rate of ₹ 1000/- PMT paid was manufactured during the period December 2004 to February 2005. He also given the finding that there is no manufacturing of molasses from 1.3.2005 to 30.4.2005. From this finding, I do not find any force in the submission of the Revenue that on such production of molasses the duty is payable as per the revised rate of ₹ 1000/- PMT instead of ͅ .....

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