2008 (7) TMI 790

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....th of gallery installed or attached to the hot air stenter machine. They filed a refund claim on the basis of judgment of Hon'ble Apex Court in case of CCE Jaipur-II v. Sangam Processors, Bhilwara, 2002 (146) E.L.T. 254 (S.C.) wherein it was held that the gallery portion was not to be considered while fixing APC. 2. The Commissioner (Appeals) has rejected the appeal filed by the appellant against rejection of refund by the original adjudicating authority on the following grounds : (a)     The judgment of Supreme Court cannot be applied to them since it was not rendered in their case. (b)     Since the appellant did not file appeal against the Commissioner fixing APC, the question of refu....

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....not been passed on to the customer, is discharged by the assessee. They also claimed that if they had shown the duty in the invoices more than the amount paid by TR6 challan, situation would have been different. They also cited the judgment of Supreme Court in case of Panihati Rubber Ltd. reported in 2006 (202) E.L.T. 41 (S.C.), to support their contention that bar of unjust enrichment is not attracted when excise duty was paid under protest and subsequently was found to be not payable. 4. Heard the learned DR who reiterates the arguments of lower authorities. 5. In view of the judgment of Mumbai High Court in case of Om Textiles, there is no doubt that the appellants are eligible for the benefit of fixation of APC on the ba....