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TMI Blog2024 (3) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... or the refund of excess customs duty paid. The respondent is engaged in the manufacture of copper anode, copper cathode, continuous copper rods etc. for the manufacture of which the primary raw material namely copper concentrate was being imported. The price of the said raw material and also the finished products namely copper cathode, copper anode, copper rods etc. was determined based on the prevailing price for copper in the London Metal Exchange (LME for short). At the end of the period specified in the contract, a provisional invoice was raised based on which copper anodes were provisionally assessed and cleared for home consumption and thereafter, when the final price was ascertained, the provisional assessments came to be finalized. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und of unjust enrichment. Aggrieved by the above order, it appears that the respondent appealed against the same before the First Appellate Authority. The First Appellate Authority vide the impugned Order in Appeal No. 01/2020-TTN (CUS) dated 18.2.2020 having considered the claim of the respondent, allowed the appeal filed by it and it is against this order that the present appeal is being filed by the Revenue. 3. Smt. Anandalakshmi Ganeshram, learned Assistant Commissioner (AR) appeared for the appellant-department and Shri Akshit Malhotra, learned Advocate appeared for the respondent. 4. Having heard both sides, we find that the only issue to be decided by us is, "whether the First Appellate Authority is justified in ordering refund the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , laying down that where the price of the copper is fixed by MMTC on the basis of the prevailing price fixed by the LME, the unjust enrichment angle will not be involved. For better appreciation we reproduce para-2 of the said decision as under: "2. On the question of refund, an affidavit of Shri Prashant Swarup, authorized representative of the respondent, has been filed wherein it has been stated that there is no question of any unjust enrichment of the respondent as a result of the refund of the excise duty paid on rectified spirit because the respondent has not passed on the duty to any consumer of the final product, viz., copper, manufactured by the respondent. It has been fixed by the Mineral & Metal Trading Corporation (MMTC) on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des. The decision of the Hon'ble Apex Court in the case of UOI Vs Solar Pesticides Ltd. - 2000 (116) ELT 401 (S.C.) and the decision of the Tribunal in the case of CC (Imports) Vs. Godrej & Boyce Mig. Co. - 2001 (135) BLT 878, no doubt holds that unjust enrichment applies to the dases of captive consumption and cases of capital, goods. However, in the present case, undisputedly, the prices of the final products are being determined on the basis of ruling UME prices. In my considered view, the question of passing on the duty burden in such a situation, to the buyers cannot be arise. The ratio of the decision of the Tribunal in the case of Mahaveer Polypacks clearly applies to the facts of the present case. The Commissioner (Appeals) have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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