TMI Blog2024 (3) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... n no way under the control of the respondent and further, this Bench in the respondent s own case has categorically held that the final product price is based on the price prevailing in LME which has no relation to the cost of raw material including customs duty, for which reliance has been placed on the decision of the Hon'ble Supreme Court in the case of STATE OF RAJASTHAN ORS VERSUS HINDUSTAN COPPER LTD. [ 1997 (11) TMI 516 - SUPREME COURT] - This Bench has thus concluded that the stand of the Revenue insofar as unjust enrichment was concerned, had no merit. The Revenue has not been able to distinguish the above case nor is there any evidence placed on record to aver that there was any change in either facts or law, nor has the Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed 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. 2.1 There is also no dispute that along with these refund claims, the assessee also filed copies of final Orders in Original and other documents based on which the Deputy Director (Cost) of the Department gave his report dated 12.6.2017 concluding that as the price of the final products manufactured by the respondent was based on the price prevailing in LME, which is not within the respondent s reach, the question of passing on the incidence of duty did not arise at all. 2.2 Show Cause Notice dated 28.11.2017 came to be issued proposing, inter al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 thereby holding that the claim of the respondent was not hit by unjust enrichment? 5. We have carefully perused the documents placed on record and we have also perused the final order of this Bench in the respondent s own case. In Final Order Nos. 40781 to 40784/2018 dated 13.3.2018, relied upon by the First Appellate Authority as well as the respondent, we find that there is no change in the facts; admittedly, the price prevailing in LME was in no way under the control of the respondent and further, this Bench in the respondent s own case has categorica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the basis of the prevailing price fixed by the London Metal Exchange (LME) and this was done not only for the period in question but also for prior and subsequent period and that only such price could be charged and that no part of the duty in respect of rectified spirit captively consumed in the manufacture of copper could be added to the price of copper which was fixed on the basis of the LME prices. We have no reason to doubt the correctness of the aforesaid statement contained in the said affidavit. In the circumstances, no case is made out for interference with the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 also noted the submissions of the party regarding determination of prices of final products, based on LME prices, but he has not discussed the same: As it is evident from the records that the prices of the final products were being determined based on the LME prices, the decision of the original authority in sanctioning the refund by way of credit into CENVAT account cannot be faulted. Therefore, the order of the Commissioner (Appeals) cannot be allowed to survive. 7. We find that the Revenue has not been able to distinguish the above case nor is there any evidence placed on r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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