TMI Blog2019 (4) TMI 890X X X X Extracts X X X X X X X X Extracts X X X X ..... al allowed - decided in favor of appellant. - E/21633/2017-SM - Final Order No. 20350/2019 - Dated:- 9-4-2019 - MR. S.S GARG, JUDICIAL MEMBER Shri H.Y. Raju Adv For the Appellant Dr. J. Harish, Jt. Commissioner (AR) For the Respondent ORDER Per : S.S GARG The present appeal is directed against the impugned order dt. 21/08/2017 passed by the Commissioner(Appeals) whereby the Commissioner(Appeals) has rejected the appeal of the appellant on the ground that the appellant in their labour bills have collected the landed cost of the inputs from their principal manufacturer, which is inclusive of the duty element and hence the refund of wrongly reversed CENVAT credit in terms of Rule 6(3) of the CENVAT Credit Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he CENVAT Credit of duty paid on the inputs consumed in job work but the refund claim is hit by the principles of unjust enrichment. 3. Heard both sides and perused records. 4.1. Learned counsel for the appellant submits that in the impugned order, the Commissioner(Appeals) by following the decision of the Tribunal in the case of Sterlite Industries Vs. CCE, Pune [2005(183) ELT 353 (LB)] held that they are entitled to avail the CENVAT credit in respect of the duty paid on the goods consumed in processing the goods received under Notification No.214/86-CE. But rejected the refund on the ground that the appellant in their labour bills have collected the landed cost of the inputs from their principal manufacturer, which is inclusive of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9) ELT 94 (Tri. Ahmd.)] 5. On the other hand, the learned AR defended the impugned order. 6.1. After considering the submissions of both sides and perusal of the material on record, I find that in the impugned order, the learned Commissioner(Appeals) has failed to consider the clause c of proviso to Section 11B(2) of the Central Excise Act, 1944 which provides an exception. As per clause c proviso to Section 11B(2) of the Act, if such refund of amount of duty paid on excisable goods used as input in accordance with rule made, or any notification made under this Act, the same has to be credited to the applicant instead of Consumer Welfare Fund. Further I find that from the ratios of the various decisions cited supra, it clearly emerges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise duty and interest, if any paid on such duty, as may be determined, to the applicant, in the circumstances contemplated under clauses (a) to (f), instead of crediting the amount to the Fund. 12.2 The learned counsel for the assessee has, correctly, argued that the assessee would fall under clause (c) of Section 11B of the CE Act. The said clause requires the concerned officer to refund credit of duty paid on excisable goods used as inputs in accordance with rules made or any notification issued under the CE Act. Clearly, once, determination has been made by the concerned officer with regard to what is provided in clause (c), the concerned Officer would be required to pay the amount to the applicant. 7. By following the ra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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