2003 (6) TMI 241 - AT - Central Excise

Summary

Issues:
1. Dispute over refund claim for waste and scrap of cables.
2. Rejection of refund claim by Assistant Commissioner based on unjust enrichment.
3. Interpretation of excisability of waste and scrap.
4. Application of Section 12B of the Central Excise Act, 1944.
5. Argument regarding passing on of excise duty to customers.
6. Applicability of unjust enrichment when duty is paid under protest.

Analysis:
1. The dispute in this case revolves around a refund claim by the respondents concerning waste and scrap of cables. The Assistant Commissioner rejected the refund claim citing unjust enrichment as the reason.

2. The Commissioner (Appeals) accepted the respondents' argument that their buyers were charged a fixed price for the scrap without excise duty. The Commissioner directed the amounts realized through various accounts to be credited accordingly.

3. The Revenue relied on the Supreme Court's decision in Mafatlal Industries v. U.O.I. to argue that excise duty is passed on to customers unless proven otherwise by the assessee. The respondents contended that they were paying duty out of their profit margin even before the waste and scrap were deemed non-excisable.

4. The respondents maintained that they were consistently claiming the waste and scrap as non-excisable. They provided evidence of customers' letters stating no excise duty payment and argued that duty was paid from their own pocket, not recovered from customers.

5. The respondents highlighted the Tribunal's decision in CIMMCO Ltd. v. Collector of Central Excise, Jaipur to support their stance. They emphasized paying duty under protest exempts them from unjust enrichment, citing Sinkhai Synthetics & Chemicals Pvt. Ltd. v. C.C.Ex., Aurangabad.

6. The Tribunal found in favor of the respondents, noting the evidence presented and the duty being paid under protest. Considering the circumstances and legal precedents, the appeal by the Revenue was dismissed due to lack of merit.