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2015 (12) TMI 1554 - CESTAT AHMEDABAD

2015 (12) TMI 1554 - CESTAT AHMEDABAD - 2016 (344) E.L.T. 326 (Tri. - Ahmd.) , 2017 (49) S.T.R. 181 (Tri. - Ahmd.) - Unjust enrichment - Refund claim - duty paid on intermediate goods captively consumed - appellant submitted unsigned Chartered Accountant's certificate in de novo proceedings rather than in the original one - Held that:- the Commissioner (Appeals) observed that appellant have produced the certificate with the Appeal Memorandum. He further, observed that it is a certificate typed o .....

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f the appellant. - The other submission of the appellant is that the Revenue should issue the show cause notice under Section 11A of the Central Excise Act 1944. It is found that the present denovo proceeding was initiated in terms of the order of the Tribunal. This issue was not raised before the Tribunal in the earlier occasions. It is also noticed that the appellant had not challenged the order of the Tribunal before the higher appellate authority. Therefore we find that both the authorit .....

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case, in brief, are that the appellants were engaged in the manufacture of various Chemicals/Fertilizers and availed Cenvat benefit on the inputs captively used in the manufacture of the final product. The appellant filed refund claim of duty paid on the intermediate goods captively consumed. The Adjudicating Authority sanctioned the refund claim by a speaking order and the amount was paid to them. The Revenue challenged the Adjudication order before they Commissioner (Appeals), which was reject .....

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impugned order, the Commissioner (Appeals) rejected the appeal filed by the appellant. 2. The Ld Advocate on behalf of the appellant submits that they produced the Chartered Accountant s certificate before the Adjudicating Authority and no finding was given by him. They also produced the copy of the said certificate before the Commissioner (Appeals), which was not signed by the Chartered Accountant and therefore it was rejected. The Ld Advocate drew the attention of the Bench the Chartered Acco .....

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alf of the Revenue submits that the issue involved is for the period from 1.3.1986 to 28.2.1989 and they have not produced this Chartered Accountants certificate at any stage and therefore the additional evidence should not be entertained by the Tribunal. He further submits that the denovo proceedings was initiated in terms of the order of the Tribunal. The Tribunal directed the appellant to produce the certificate from the Govt. authorities, which they failed to do so. There is no wrong in the .....

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credit of duty paid on Methane produced and captively consumed by them. The refund claims filed were sanctioned by the Asstt. Commissioner. Based on the sanction, the appellants took credit in their RG 23A Part II account. The department field an appeal before the Commissioner (Appeals), who by his order dated 15.10.99 rejected the appeal of the Revenue on the ground that the bar of unjust enrichment was not applicable in the case of captive consumption, relying upon the decision of the Bombay .....

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al before the Tribunal. We have heard both sides. The Ld. Counsel of the appellants relied upon the decision of the Tribunal in the case of Oswal Chemicals and Fertilizers vs CCE Guwahati [2004(172)ELT.216] and other decisions to support the contention that since the price of fertilizer was fixed by the Revenue, the question of appellants passing on higher duty burden doe not arise. On the other hand, the Ld SDR while pointing out that his judgment has been considered by the Authority below subm .....

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made out, we set aside the impugned order and remand the case to the jurisdictional Asstt. Commissioner/Dy Commissioner for examining as to whether while fixing the price of fertilizers, the government had taken into account the duty on methane. The appellants are at liberty to obtain he necessary certificate from the Government and place it before the Adjudicating Authority who shall pass fresh orders, after extending reasonable opportunity of hearing to the appellants. 5. It is clear from the .....

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