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TMI Blog2014 (8) TMI 698X X X X Extracts X X X X X X X X Extracts X X X X ..... nd have not taken credit thereon and the same is mixed with motor sprit. After mixing, the said product is called Ethanol Blended Motor Spirit (EBMS). The contention of the appellant is that as they have not availed CENVAT credit on Ethanol at the time of procurement and cleared EBMs on payment of duty therefore they paid duty twice on Ethanol. Therefore, they are required to be refunded the duty paid of ethanol by them at the time of clearance of Ethanol mixed with motor sprit for the period 01.02.2002 to 31.12.2002. As Notification No. 62/2002-CX dated 31.12.2002 made the EBMS duty-free therefore, on analyzing the notification, it was held by the lower authorities that the activity of blending of Ethanol with Motor Sprit amounts to manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Ethanol which they could not take as per the terms of permission granted by the Revenue vide letter dated 21.11.2002. Therefore, as duty cannot be demanded twice on the same product therefore they are entitled for refund claim of either CENVAT credit or duty paid on Ethanol at the time of clearance of EMBS. 4.1 On the issue of unjust enrichment the learned Advocate relied on the decision of their own case reported in 2011 (263) ELT 698 (Tri,). Therefore, the learned Advocate prays that the impugned order be set aside and the appeals be allowed with consequential relief. 5. On the other hand, the learned A.R. appearing for the Revenue opposes the contention of the learned Advocate and submits that the letter issued by the Range Superint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of that it cannot be said that the appellants are required to pay duty twice. As the appellants have claimed refund of excess duty paid on Ethanol portion at the time of clearance of EBMS or they are entitled for CENVAT credit at the time of procurement of Ethanol, the consequences will be the same as they are entitled to get the refund of excess duty borne by them. As the facts of double payment of duty on Ethanol is not in dispute at any stage and the dispute has been arisen on the wrong understanding of the Revenue while granting them permission for blending the Ethanol with MS. Therefore, following the principles of natural justice we hold that the appellants are entitled for refund claim for duty paid on Ethanol. 7.1 With regard to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion of manufacturer passing on the incidence of duty to the customers does not arise. Similarly, decision of the Tribunal in the case of Southern Petrochemical Industries Corporation Ltd. v. Commissioner of Customs, Chennai - 2001 (45) RLT 811 (CEGAT-Che.) is also relevant. In this case, it was held that where the sale price of end product is controlled by the Government, assumption that assessee would have passed on the incidence of duty to the customer, is neither reasonable nor logical. Under these circumstances, we find that the appellant is eligible for the refund claimed by them." In view of the above, we hold that unjust enrichment is not applicable to the facts of this case. 8. In the result, we hold that the appellants are ent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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