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M/s Elantas Beck India Ltd. Versus Commissioner of CE & ST (LTU)

2016 (10) TMI 132 - CESTAT MUMBAI

Refund claim - duty paid under protest - captive consumption of Notional Resin Contents of Wire Enamels formed during the process of manufacture of intermediate product without payment of duty - unjust enrichment - Held that:- this is not the case of Excise duty were directly charged in the invoice for the reason that the duty was paid on intermediate product. In such case the test whether the incidence of the duty is forming the part of the final product or otherwise can be ascertain only on th .....

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required that the duty incidence is not included in the value of final product. - I do not agree with this contention of the lower authorities for the reason that treatment of duty paid amount in the books of account is not conclusive proof that the incidence has been passed on to some other person. Even if the duty paid booked under expenditure and the same has not been charged any person then the result will be in profit reduction that itself shows that the incidence of such duty has been .....

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it is sufficient to accept that the incidence of Excise duty paid on intermediate product has not been passed to any other person. I therefore direct the adjudicating authority to verify properly the above aspects and if it is found correct then the appellant appears to be prima facie entitled for the refund. - Appeal allowed by way of refund - Appeal No. E/352/2011 and E/89849/2014-Mum - Final Order No. A/88191-88192/2016-WZB/SMB - Dated:- 27-6-2016 - Mr. Ramesh Nair, Member (Judicial) Shri Mih .....

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2008. 2. The fact of the case is that during the process of manufacture of intermediate product namely Notional Resin Contents of Wire Enamels is formed and the same was consumed captively by the appellant, without payment of duty. After pointing out by the Department, the appellant started paying duty on the said product Under Protest. The issue was decided in favour of the appellant by the Tribunal. Subsequently the appellant filed a refund claim on 29.09.1998 which was rejected by the Assista .....

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nion of India Vs. Solar Pesticides Pvt. Ltd. 2000 ELT 401 (SC). A show-cause notice dated 20.02.2001 was issued to the appellant proposing rejection of refund claim on the ground of unjust enrichment. By the adjudication order dated 02.05.2001 the refund claim was rejected, on the grounds that the appellant have not furnished any documentary evidence that they have not recovered the incidence of duty from the buyers. The Commissioner, (Appeals) in the appeal field by the appellant, vide Order-in .....

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rity once again rejected the refund claim on the ground that appellant could not prove that the incidence of the duty has not been passed on to any other person. Being aggrieved with the de novo adjudication order, the appellant filed an appeal before the Commissioner (Appeals) which was rejected by the impugned order therefore the appellant is before me. 3. Shri Mihir Deshmukh, learned Counsel along with Ms. Ami Parekh, learned Advocate appearing on behalf of the appellant submits that the duty .....

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nd passed to any person, the burden of the said duty was born by the appellant themselves, therefore the refund of such an amount is not hit by mischief of unjust enrichment. In support of his argument, he placed reliance on the following judgements:- (i) Business Overseas Corporation Vs. C.C. (Import & General), New Delhi 2015 (317) ELT 637 (Tri.-Del) (ii) Motor Industries Company Ltd. Vs. CC, Chennai 2005 (188) ELT 315 (Tri.-Bang) (iii) Infar India Ltd. Vs. CC, New Delhi 2000 (150) ELT 411 .....

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Therefore the evidence available and explanation submitted by the appellant should not have been discarded, therefore the refund was wrongly rejected. 4. On the other hand Shri R.K. Maji, learned Assistant Commissioner (A.R.) appearing on behalf of the Revenue submits that the appellant have not shown amount of duty paid by them as a receivable in books of account. He submits that being a very old matter, the Chartered Accountant certificate also does not show the correct position, hence the Cha .....

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njust enrichment. 5. I have carefully considered the submissions made by both sides. From the fact of the case it appears that the appellant have paid the Excise duty on the intermediate product on insistence of the Department, therefore they paid the duty Under Protest. This is not the case of Excise duty were directly charged in the invoice for the reason that the duty was paid on intermediate product. In such case the test whether the incidence of the duty is forming the part of the final pro .....

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