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TMI Blog2009 (2) TMI 564X X X X Extracts X X X X X X X X Extracts X X X X ..... rder]. This appeal has been filed by M/s. Hindustan Hardy Spicers Limited, Nasik (the appellants herein) against the Order-in-Appeal dated 30-10-2007 passed by the Commissioner (Appeals), Central Excise and Customs, Nasik. The Commissioner (Appeals), vide the impugned order, has upheld the Order-in-Original dated 16-3-2007 passed by the Assistant Commissioner of Central Excise, Nasik-II Divi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in 2006 (193) E.L.T. 33 (Tri.-Mumbai) in which it was held that the duty is not payable on such scrap. Show cause notice was issued on 27-4-2006 and the case was adjudicated in the above manner and confirmed by the Commissioner (Appeals). 5. I extract below the grounds, on which the Commissioner (Appeals) has upheld the order of the Assistant Commissioner, rejecting the refund claim. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 274 (Tri.-Del.)] that once assessment is done, it can only be changed by a competent appellant authority through the process of filing appeal; filing a refund claim in contradiction to what has been assessed (and not modified by the competent authority) cannot be entertained. The adjudicating authority is right in referring to the Hon ble Supreme Court Judgment in the case of Mafatlal Industries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court that a person, whether a manufacturer or importer, must fight his own battle and must succeed or fail in such proceedings. It was also held by the Supreme Court that once assessment of levy has become final in his case, he cannot seek to reopen it nor can he claim refund without re-opening such assessment/order on the ground of a decision in another person s case. Any proposition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , while working out the job charges. Further, the duty paid by the appellants on the scrap cleared from the job worker s premises under the cover of the invoices has been recovered from the customers. Hence, the claim is hit by the doctrine of unjust enrichment and the appellants are not entitled to the refund on this count also. 8. The impugned order passed by the Commissioner (Appeals) is sust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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