TMI Blog2017 (11) TMI 556X X X X Extracts X X X X X X X X Extracts X X X X ..... he Supreme Court which has been made retrospective effect and in our considered opinion, when the competent authority i.e. Superintendent, Central Excise Range-I has passed the order of refund, it will not be appropriate to adjudicate the same issue in a refund application preferred by the assessee, more particularly when he has specifically made a declaration and last time when the matter was argued, counsel for the appellant has specifically made the point that the tax which has been paid was part of the price which has been recovered. The Tribunal and all other authorities committed a serious error in refusing to refund the amount and after the order passed which was not challenged. Refund allowed - appeal allowed - decided in favo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Grey Woollem fabric falling under chapter 51 of the schedule to the Central Excise Tariff Act 1985 (hereinafter referred to as the said yarn also). The said grey woollen fabric is chargeable to duty of Excise on advalorem basis. The assessee had filed the price declaration in Annexure II C for arriving at the assessable value of the grey woollen yarn used in the manufacture of grey woollen fabric was not ascertainable at the time of removal, the value of the grey woollen fabric was also not ascertainable. Therefore the assessee requested for assessment of the grey woollen fabric and the assessment was ordered to be provisional under Rule 9-B of Central Excise Rules 1944 vide order c.No.V(55)17/PD/14/973443-3445 dated 26.6.97 and is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich came to be issued wherein it has been stated as under:- But assessee have simply submitted that instant refund claim has become due on account of final assessment of yarn used and consumed captively and therefore, question of passing of duty incidence does not arise. They also invited attention to the case of CCE Vs. Dynomac Pumps, reported in 1999 (113) ELT 513 (T) wherein it has been held that where the goods are captively consumed, there is no question of passing on incidence of duty to anyone else since the goods are not sold to anyone else. 6. He has taken us to the reply which was filed. Para 3 of the reply reads as under:- At the outset, we wish to submit that the show cause notice is wholly misconceived, patently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh the submissions of the ld. SDR and perused the records. We observe that the Collector, in the impugned order, has rejected the Department s appeal filed before him following the decision of the Bombay High Court in the case of Solar Pesticides Ltd., V. UOI (supra). This Tribunal has followed the ratio of this decision in a large number of cases. The Bombay High Court has held that where the importer used the goods himself, there is no question of passing on incidence of duty to anyone else since the goods imported are not sold to anyone else. Hence he gets the refund. The Bombay High Court further held that the scheme of Unjust Enrichment introduced by amendment of the Act envisaged the direct transfer of burden of duty along with the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her contended that authority has observed as under:- In the present case, the grey fabric was under provisional assessment as the yarn captively consumed for weaving of said fabric was also under provisional assessment, and grey woollen fabrics from weaving division never sold direct by them, but the same in being processed on job work and then the processed fabric are ultimately sold to different customers at higher rate. Therefore, it is difficult to ascertain that whether the burden of duty borne on grey woollen fabric has been passed on to the buyer of processed fabric or not and they have not produced any proof that themselves have borne the burden duty paid on grey fabric. The consequential refund is of the said grey fabric agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this ratio of the law. Therefore, the refund claim of the appellants had been rightly rejected by applying the principle of unjust enrichment for having passed on the incidence of duty to the ultimate buyers. We do not find any illegality in the impugned order and the same is upheld. The appeals of the appellants are dismissed. 9. Counsel for the appellant has relied on the judgment rendered in the case of Hindustan Lever Ltd. Vs. CCE, Ghaziabad, 2004 (171) ELT 12 and the judgment rendered by the Supreme Court in Commissioner of Central Excise, Chennai-III Vs. Grasim Industries :: (2015) 14 SCC. Counsel for the respondent Mr. Anuroop Singhi has relied on the judgment rendered by the Supreme Court in the case of Union of Indai Vs. S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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