2009 (3) TMI 854

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....hat the respondents were engaged in the process of diluting the highly concentrated form of pesticides for the purpose of marketing. The respondents filed a refund claim of Rs. 6,55,000/- paid under protest as the process undertaken by them does not amounts to manufacture. By adjudicating order dated 20-11-95 the Asst. Commissioner of Central Excise rejected the refund claim on the ground that the goods produced by them are to be excisable in terms of Board's circular No. 40/2/95-C.E., dated 27th July, 1995. Meanwhile the similar matter went before the Hon'ble High Court of Delhi. The Hon'ble Delhi High Court held that such process of dilution does not amount to manufacture as reported in 2000 (115) E.L.T. 324 (Del.). Revenue filed appeal b....

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....He further submits that the said amount was to be utilized at the time of clearance and, therefore, they have to establish that incidence of duty has not passed on to any other person. He also submits that the Commissioner (Appeals) erroneously proceeded on the basis of earlier Order-in-Appeal dated 4-11-2004 whereby the respondent was allowed to re-credit the amount and not refund the amount. In the present case they have filed refund claim and, therefore, unjust enrichment is applicable. 4. Learned Advocate on behalf of the respondents reiterates the findings of the Commissioner (Appeals). He submits that the respondents originally filed refund claim of Rs. 6,55,000/- which was allowed by the Commissioner (Appeals) vide order date....