TaxTMI 
TaxTMI 
2016 (3) TMI 396
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....) allowed the appeal in respect of refund of Rs. 18,91,609/-. 2. The issue involved in the present case is that the appellant being 100% EOU, whether they are required to pay duty on the cut flowers grown and sold in DTA. Since the respondent already paid duty on the cut flowers i.e. non excisable goods, whether they are entitle for the refund claim and whether refund claim hit by unjust enrichment. 3. Shri. Ashutosh Nath, Ld. Asstt. Commissioner(A.R.) appearing for appellant(Revenue) reiterating the grounds of appeal submits that the respondent being 100% EOU are required to pay duty on the cut flowers which is equal to the custom duty leviable on the cut flowers as if the same is imported into India. However on query from the benc....
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.... the Ld. Commissioner (Appeals) order it appears that the respondent have not submitted any evidence of non passing of incidence of duty for which the refund is sought for. 4. Shri. S.R. Prabhune, Ld. Asstt. General Manager appearing on behalf of the Respondent submits that the Ld. Commissioner sanctioned the claim of the duty only to the extent of duty as whole paid on the cut flowers. The cut flowers is non excisable goods, he submits that the judgment relied upon by the Revenue are not applicable to the facts of the present case for the reason that in case of Horizon Flora India Ltd(supra) which is based on LR Brothers, Indo Flora Ltd. In the said judgment it was clearly held that as per the Notification No. 126/94-Cus dated 3/6/1994 ....
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.... used for the purposes of production, manufacture or packaging of articles and such articles (including rejects, waste and scrap material arising in the course of production, manufacture or packaging of such articles), even if not exported out of India, are allowed to be sold in India under and in accordance with the Export-Import Policy and in such quantity and subject to such other limitation and conditions, as may be specified in this behalf by the Development Commissioner, on payment of duty of excise leviable thereon under Section 3 of the Central Excises and Salt Act, 1944 (1 of 1944) or where such articles (including rejects, waste and scrap material) are not excisable, on payment of Customs duty on the said goods used for the purpos....
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....ime of clearance of such articles." From the above paras, it is very clear that though the duty is required to be paid but only equal to the amount of custom duty on the input used in the production of non excisable goods In the present case the cut flowers is non excisable goods, by application of above notification the duty require to be paid is equal amount of duty leviable on the input used in the production of cut flowers. In the impugned order, Ld Commissioner has upheld the duty of input like fertilizer, chemical therefore duty over and above this amount is not payable on the cut flowers. The judgment cited by the A.R. are on the issue that what duty is to be paid on the non excisable goods and it was held that duty is required to....