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TMI Blog2023 (3) TMI 1208X X X X Extracts X X X X X X X X Extracts X X X X ..... without payment of Excise Duty. Under the mistaken impression that this was liable to payment of Excise Duty, they paid Excise Duty of Rs.76,035/- along with interest Rs.4,313/-. After finding that this amount was not liable to be paid by them, they filed a refund claim for this amount. The Department issued Show Cause Notice dated 15/06/2009 seeking to know as to why the refund claim should not be rejected since they are required to pay the Excise Duty on used and scrapped refractories and the payment done by them is correct. After due process, the Adjudicating Authority rejected the demand. 2. On Appeal, the Commissioner (Appeals) after going through the submissions and statutory provisions, set aside the OIO and allowed the Appeal. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have asked for some evidence for proving that the said Central Excise duty had not passed on to the customer, want of which refund granted by the Adjudicating Authority is erroneous. 3. The Commissioner (Appeals) vide his OIA date 21/02/2018 allowed the Department's Appeal and set aside the OIO holding is under:- 5.1 I find that this is a case involving clearance of "Refractory Scrap" during the period November '07 to March'08. I find that rule 3 (5A) of CCR'04, as it existed during the material period stipulated as follows: (5A) If the capital goods are cleared as waste and scrap, the manufacturer shall pay an amount equal to the duty leviable on transaction value. Carefully going through the above rule, it becomes very clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rstwhile Commissioner (Appeals) had clearly issued Order to the effect that the goods cleared could not attract any Excise duty. 5. The Advocate relies on the case law of CCE Mumbai-V Vs. Pam Pharmaceuticals and Allied Machinery Company Pvt. Ltd.-2017-TIOL-1595- CESTAT-MUM. 6. The Ld. Authorized Representative submits that the question of unjust enrichment is a point of law and can be invoked by the Department at any particular point of time and hence they were correct and taking this ground before the Commissioner (Appeals). He relies on the case law of Oil & Natural Gas Corporation Ltd. Vs. Commr. of Service Tax, Mumbai-2011 (24) S. T. R. 212 (Tri.-Mumbai). 7. Heard both sides. 8. As per the grounds of Appeal, the issue before the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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