1998 (5) TMI 104

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....f Pune Commissionerate. 2. The facts of the present appeal is that M/s. Dr. Beck & Co., Pimpri, Pune are inter ralia engaged in the manufacture of "Resin B 52" for captive consumption which was exempted under Notification No. 157/81, dated 29-8-1981. The Classification List effective from 29-8-1981 filed by the respondents was approved by the Assistant Commissioner giving the benefit of Notification No. 157/81, dated 29-8-1981. The respondents therefore filed a refund claim for Rs. 4,47,339.45 in respect of duty paid on their product "Resin B 52" used for captive consumption during 29-8-1981 to 8-6-1982. Assistant Commissioner, vide Order-in-Original No. RC/62/82-83, dated 14-10-1983 rejected the respondent's refund claim and held t....

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....rnish the documentary or other evidence to establish that the incidence of such duty has not been passed on to any other person. The Section 11B does not give any exception for the cases of captive consumption. The Hon'ble Supreme Court in the case of UOI v. Jain Spinners Limited - 1992 (61) E.L.T. 321 has issued specified directions to all the Courts that they will be bound to follow the amended provisions of the law and would be unable to order withdrawal or refund of the duty to the assessee unless the assessee discharges the burden cast on him by the Statute. It was not proper for Assistant Commissioner to take a view that the theory of unjust enrichment does not apply to duties paid on captively consumed goods. Even otherwise the decis....

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.... to be applicable and hence the reliance placed on the said judgment in the appeal is mis-placed. Though the Department has preferred an appeal against the decision of Bombay High Court in case of Solar Pesticides, Department has not produced any order passed by Supreme Court staying operation of the order passed by Bombay High Court in case of Solar Pesticides. In the absence of any order from Supreme Court for stay of operation of the order passed by High Court, Bombay in case of Solar Pesticides, even though Department has preferred Appeal, mere preferring an appeal does not bestow right upon the Department to ignore or dislodge the decision delivered by High Court, Bombay. The adjudicating authority has rightly and correctly passed the ....

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....ved and is liable to be dismissed. 6. I have carefully gone through the case records and the proceedings of the personal hearing. The issue to be decided in this case is whether refund of Excise duty wrongly paid by the respondents for captive use amounts to unjust enrichment as contended by the appellants. The appellants have stated that the department has not accepted the Hon'ble Bombay High Court's decision in case of Solar Pesticides Pvt. Ltd. v. CC - 1992 (57) E.L.T. 201 (Bom.) and has filed SLP in the Supreme Court. The department's appeal by way Special Leave Petition (C) No. 4396 of 1995 on behalf of Union of India against the judgment and Order dated 8-9-1994 of the High Court of Bombay passed in Writ Application No. 6026/9....