2008 (9) TMI 708

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.... Nawal, CA, for the Respondent. [Order]. -  This appeal is filed by the Revenue against Order-in-Appeal No. CEX.XI/JMJ/90/916/NSK/APPL/2003, dated 3-6-2003, vide which the learned Commissioner (Appeals) has set aside the impugned order and sanctioned the refund to the respondent. 2. Considered the submission made at length by both sides and perused the records. 3. The ad....

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....d that M/s EPC Industries Ltd., have paid duty @24% instead of 165 advoloren for the period 13-3-00 to 19-3-00. During the budget 2000 i.e. 28-2-2000, the rate of duty 24% advaloren reduces to 16% advaloren. This fact remains un-noticed by them and they are paying duty @24% continuously up to 19-3-00. After the facts even known, they have filed the refund claim for excess duty after the budget 200....

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....ot arise. (ii)     The Commissioner (Appeals) has clearly overlooked the fact that the unjust enrichment element applies even in cases where the product is captively consumed, which is supported by the judgment of the Supreme Court in the case of Union of India & Others v. Solar Pesticides Pvt. Ltd., wherein the Hon'ble Supreme Court observed that even for captive consumptio....

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....osition of law in respect of applicability of unjust enrichment in cases of refund relating to captive consumption, the Commissioner (Appeals) ought to have relied on documentary evidences to pronounce that incidence of duty has not been passed on, directly or indirectly, to any other person." 6. The learned SDR reiterates the grounds of appeal as has been reproduced herein above. 7.&em....