AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2003 (6) TMI 92
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....ce to prove that the duty paid has not been loaded on to their products and hence the order of the lower authority granting refund of Rs. 27,66,970/- is not sustainable in law. 2. The brief facts of the case are that the appellants herein purchased Electro Static Precipitators (ESPs for short) from M/s. BHEL, Ranipet. In terms of Notification No. 78/1990, dated 20-3-1990 the appellants are entitled to buy ESPs at concessional rate of duty i.e. at 5% ad valorem as against the normal rate of 15% ad valorem of duty provided that an officer not below the rank of Deputy Secretary in the Ministry of Environment and Forests Certifies that the goods manufactured are intended for pollution control purpose. Since the manufacturer of the goods viz. B....
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.... reconsider the issue. The Assistant Commissioner in the de novo proceedings by his Order-in-Original No. 6/94, dated 10-6-94 rejected the claim of the appellants. Subsequently the Central Board vide Trade Notice No. 123/94, dated 14-9-94 clarified that ESPs can be supplied in parts in SKD or CKD condition. In view of the clarification issued by the Central Board, the appellants again went in appeal before the Commissioner (Appeals) and the Commissioner (Appeals) allowed the appeal of the appellants vide Order-in-Appeal No. 226/94 (M), dated 14-10-94. Aggrieved by the said order in appeal, the department filed appeal before the Tribunal vide Appeal No. E/26/95. Since the refund was not granted to the appellants, they filed Writ petition bef....
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....eliance of the Commissioner in the decision of the Hon'ble Apex Court in the case of UOI v. Solar Pesticides reported in 2000 (116) E.L.T. 401 (S.C.) cannot help the department as the case related to input used for production of final products and not capital goods. He has further pleaded that the present impugned order is beyond the scope of the show cause notice and also the remand order of the Tribunal. He has also submitted that the Section 11B of the CE Act, has no nexus with the provisions of the Income-tax Act and there was no necessity for the Commissioner (Appeals) to have imported the provisions of the IT Act into the present dispute as the dispute is whether the appellants are eligible for refund in the facts of the present c....
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....ade by both the sides. We observe that this case has a chequered history as could be seen from narration of facts in Para 2 above. The supply of the goods viz. ESPs was completed on 25-2-92 as noted by the original authority on page 7 of his order dated 31-1-99 and the refund claim was made within time i.e. on 18-9-92. We are constrained to note that a very simple issue as to whether the appellants are entitled to refund or not in respect of the excess duty paid by them, could not be settled so far without any valid reasons. Here is a case where the appellants had to pay full duty @ 15% on the ESPs purchased by them from BHEL, A Govt. of India Undertaking, for installation of 25 MW Power generation at Nagda, for the purpose of pollution con....
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....n capital goods and also the provisions of the Income-tax Act in the case of refund claim pertaining to capital goods, and following the ratio of that decision of the Commissioner (Appeals) has held that since the appellants herein have not substantiated their claim with evidence to prove that the duty has not been loaded on to their products, the order of the original authority granting refund of Rs. 27,66,970/-, was not in order. We are not able to share the view taken by the Commissioner (Appeals) whose order has been relied upon by the lower appellate authority in the present case. We are of the considered opinion that there was no necessity for the Commissioner (Appeals) to have injected the provisions of the income-tax into the presen....
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....se that case related to the captive consumption of raw material imported for manufacture of a final product. We have perused the judgment of the Hon'ble Apex Court in the case of Solar Pesticides Pvt. Ltd. (supra) and we note that the issue that arose for consideration before the Apex Court was whether the doctrine of unjust enrichment is applicable in respect of raw material imported and consumed in the manufacture of a final product and the Hon'ble Apex Court has held that the principle of unjust enrichment incorporated in Section 27 of the Customs Act (corresponding Section 11B of the CE Act) would be applicable in respect of imported raw material and captively consumed in the manufacture a final product and duty is considered to....