2008 (9) TMI 831

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....efund is claimed in respect of Heavy Melting Scrap which had been captively consumed by the appellant. On the question of applicability of the doctrine of unjust enrichment in respect of goods used captively there are now several decisions. This position has been amply summed up in the order of the Hon'ble Tribunal, as reported at 1998 (101) E.L.T. 97 and the relevant extract is reproduced below: In Solar Pesticides Pvt. Ltd. Mrs. Sujatha Manohar learned justice to the High Court of Bombay as she then was, after examining the provisions of Section 27 and other relevant provisions of the Act held that the scheme is designed for a situation where the importer sells the imported goods either directly passes on the incidence of duty to the b....

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.... on the raw material in the price of the final product. Going by the decision in Madhura Courts v. Collector - 1996 (82) E.L.T. 512 = 1996 (13) RLT 186 (Tri.) since the High Court of Karnataka is the jurisdictional High Court for the assessee and that the court has not expressed any view on the aspect, we have to consider the decisions of the other High Courts and take a view which appears to be in consonance with the statutory provisions and the scheme. Having considered the reasoning contained in the decisions of the three High Courts we follow the reasoning and conclusion of the High Court of Bombay in the decisions referred to above. In this view, we hold that the doctrine of unjust enrichment recognized in Section 27 of the Act w....

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....iginal Authority had inferred that the mere production of invoices was not sufficient to come to conclusion that the incidence of duty has not been passed on. She submits that something more was required on behalf of the assessee to prove that incidence of duty had not been passed on. She submits that normally the final price of the product includes the costing of the raw materials which are used as capital goods. Therefore, the conclusion arrived at by the Original Authority to deny the refund is justified. She also refers to Supreme Court judgment rendered in the case of Union of India v. Solar Pesticide Pvt. Ltd. - 2000 (116) E.L.T. 401 (S.C.) wherein it has been held that the aspect of unjust enrichment should apply even to captive cons....