2003 (6) TMI 241

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....aste and scrap of cables. It is seen that the dispute regarding the excisability of waste and scrap was going on between the Revenue and the respondents for quite some time and the same attained finality by the Order of the Assistant Commissioner, Berhampore dated 25-4-94. The said Order was accepted by the Revenue and it was held that such waste and scrap was not excisable. Thereafter, the appellants filed a refund claim of duty paid by them under protest during the period in question. The said refund claim was rejected by the Assistant Commissioner on the ground of unjust enrichment. 3. On appeal against the above Order, the Commissioner (Appeals) accepted the respondents' stand that their buyers got a firm price of Rs. 69.00 per ....

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....e paid by them as the goods were free from Excise Duty. Learned Advocate also submits that they were paying the Excise Duty from their own pocket, inasmuch as their customers have not paid them any amount on account of duty. He clarifies that they continued to sell the product at the same rate of Rs. 69.00 per Kg., even after the waste and scrap was held to be non-excisable. This fact, by itself, shows that the duty was being paid by them out of their profit margin. Reliance has also been placed upon the Tribunal's decision in the case of CIMMCO Ltd. v. Collector of Central Excise, Jaipur reported in 1999 (107) E.L.T. 246 (Tribunal) wherein it was held that even when the assessee was taking a stand as regards the non-excisability of the goo....