2018 (7) TMI 2

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....of brass sheets/circles falling under Chapter Heading 74.09 01.08.2004 Appellant requested the learned Deputy Commissioner to allow clearances of brass sheets/circles without payment of duty, since the goods manufactured by the appellant are exempt from payment of duty in terms of S.No. 181 of Notification no. 6/2002-CE dated 1.3.2002. Reliance was placed on decision of this Tribunal in the case of CCE, Jaipur-II Vs. Mewar Bartan Nirman Udyog, 2002 (146) ELT 644. It was specifically stated that we are paying duty under protest and no incidence of duty has been passed upon the consumer. 02.02.2007 Appellant filed refund claim of Rs. 10,22,942/- for the period Aug, 04 to March, 06 on account of duty paid under protest alongwith necessary ....

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....it of Notification no. 67/95-CE dated 16.03.1995, therefore, refund cannot be granted to them. 2011 Appeals filed before Commissioner (Appeals) challenging the aforesaid common orders dated 27.01.2011 by the learned Adjudicating Authority. 18.04.2011 Impugned O-I-O has been passed by the learned Commissioner (Appeals) rejected the appeals of the appellant on the grounds that:- * Appellant availing the benefit of Notification No. 67/95-CE dated 16.03.1995, therefore, refund cannot be granted to them * Refund is hit by unjust enrichment. 2011 Appeals filed before this Hon'ble Tribunal by challenging the impugned orders on various grounds and praying for setting aside the impugned orders. 3. The learned counsel for the appellants st....

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....er, while giving exemption, a dichotomy is created between trimmed/untrimmed sheets of copper which attracts duty at the rate of Rs. 3500/- PMT on one hand and, on the other, all goods other than trimmed/untrimmed circles of copper intended for use in the manufacture of utensils which attract nil rate of duty. In this case, circles manufactured by the assessee are made from brass. Therefore, in our view, S.No. 200 would apply and the assessee would be entitled to claim nil rate of duty under the said Notification." 4. Thus, the first ground of rejection of refund is stand settled by Hon'ble Supreme Court is regarding applicability of Notification No. 6/2002 - CE in the facts of the appellant's case. The second issue which arises is wh....

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....he appellant have not passed on the instead of duty to any person nor as claim the same is expenses in the profit and loss account and further shown the amount under the head current assets is recoverable from the Central Excise Department. Accordingly, the appellant prays for allowing the appeal with consequential benefits. 5. The learned AR for the Revenue relied on the impugned order. 6. Having considered the rival contentions I hold that the issue on merits stands decided in favour of the appellant assessee. So far the applicability of Notification No. 6/2002 - CE dated 01 March, 2002 is concerned. Accordingly, I hold that the appellant is entitled to refund of the duty deposited under protest. So far the issue of unjust enrichment is....