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2019 (9) TMI 279

..... les, 2004 - HELD THAT:- In the instant case, the appellants have exported goods on payment of duty. The fact of export is not challenged and the purpose of the procedure export under bond is just to ensure that the goods are exported. In the instant case, since the fact of export of goods is not under challenge, even if the Cenvat Credit is not reversed in respect of these exports, the appellant would be principle covered by the clause (v) of sub-Rule 6 of Rule 6 of Cenvat Credit Rules, 2004 and therefore, exempted from the provision of sub rule (1), (2), (3) & (4) of the Rule 6 of Cenvat Credit Rules, 2004. Rebate claim - rejection of claim was that the goods cleared by the appellant were exempted under notification 12/2012-CE dated 17 .....

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..... ound of erroneous payment of duty. In view of the clear provision of section 11B(1), the onus of establishing the lack of unjust enrichment in this case is on the appellant. The appellants are entitled to refund - the same can be given only when they pass the test of unjust enrichment - matter remanded for such reconsideration - appeal allowed by way of remand. - Excise Appeal No. 12152 of 2018-SM - A/11704/2019 - 6-9-2019 - HON'BLE MEMBER (TECHNICAL), MR. RAJU Present For the Appellant: Shri H.P. Kanade, Advocate Present For the Respondent: Shri S.N. Gohil, Supdt. (AR) ORDER RAJU This appeal has been filed by M/s Macleods Pvt. Ltd. against rejection of refund claim. 2. Ld. Counsel for the appellant argued that the issue is if refund of .....

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..... duty by the appellant from the foreign buyers. It was pointed out that the Bank Realisation Certificates (BRC) shows that the said amount was recovered from the buyers. Relying on the aforesaid argument, the claim of the appellant was rejected by the Original Adjudicating Authority. Ld. Counsel pointed out that they had produced necessary documents in support of the reversal before Commissioner (Appeals). However, the said documents were rejected on the ground that the same were not produced before the Original Adjudicating Authority. Ld. Counsel further pointed out that the Order in Appeal relied on section 5A (1A) to assert that it is not open to the appellant to pay duty which are unconditionally exempted. Relying on the aforesaid provi .....

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..... We have gone through rival submissions. We find that refund has been denied in respect of duty paid on goods which were already exempted and which were exported. The export and availability of exemption are not in dispute. In view of the fact that the goods are exempted and not liable to pay duty, however, the appellant chose to pay duty knowingly, is also established from the fact that in the other unit of the appellant, the appellant was asked to reverse the said amount, which the appellant did on 16.06.2011. In the instant case, the appellant has chosen to pay duty in the year 2013 and thus, it can be said that it was a voluntary act. In the above factual matrix what emerges is that the appellant who was not liable to pay duty on these .....

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..... Cenvat Credit Rules, 2004 and therefore, exempted from the provision of sub rule (1), (2), (3) & (4) of the Rule 6 of Cenvat Credit Rules, 2004. 4.2 The next issue relates to unjust enrichment. It has been held by the lower authorities that the appellants have recovered the entire duty equivalent amount from the foreign buyers and, therefore, any duty would amount to unjust enrichment. In this regard, the appellant have not disputed that the amount recovered by them reflected in the bank realization certificate is inclusive in the duty element. The appellant have relied on the decision of Joint secretary of Govt. of India in the case of Indian Oil Corporation Ltd. 2006 (197) ELT 435 (GOI) to assert the principle of unjust enrichment is .....

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