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TMI Blog2015 (1) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... acture of ABS polymer, two intermediate products - HRG Powder and E-SAN Powder arise which are captively used for manufacture of the final product- ABS Polymers. During the month of November 2011, there was some break down in the appellant's manufacturing plant at Abu Road, as a result of which the HRG powder and E-SAN powder could not be manufactured there. Therefore, during November 2011 the Abu Road unit received HRG powder and E-SAN powder from Satnoor Unit in Madhya Pradesh on stock transfer basis. The Satnoor Unit sent the HRG powder and E-SAN powder to Abu Road unit on stock transfer basis on payment of the applicable Central Excise duty under invoices. However, since the assessable value was to be determined in terms of Rule 8 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to file appeals before the Commissioner (Appeals). The Commissioner (Appeals) decided the 6 appeals of the Revenue by a common order-in-appeal dated 30th January 2012 by which he allowed the Revenues appeals and reversed the Deputy Commissioners orders holding that the refund claims are hit by the bar of unjust enrichment. Against this order of the Commissioner (Appeals), these six appeals have been filed by the appellant. 2. Heard both the sides. 3. Shri J.P. Kaushik, Advocate, the learned Counsel for the appellant, pleaded that all the refund claims are in respect of clearances of HRG powder and E-SAN powder by the appellant unit - (Satnoor unit) to Abu Road unit during November 2011, that these clearances had been made on stock tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is without any basis and that in view of the above submissions, the impugned order is not correct. 4. Shri Amresh Jain, the learned DR, defended the impugned order by reiterating the findings of the Commissioner (Appeals) and pleaded that once the goods had been cleared by the appellant unit to its Abu Road unit under Central Excise invoices, wherein the excise duty has been separately mentioned, it has to be presumed that the incidence of that duty had been passed on, that, therefore, the burden of proof is on the appellant to prove that the incidence of duty whose refund had been claimed had not been passed on, that in this regard no evidence has been furnished by the appellant, that Abu Road unit has taken Cenvat credit of the duty pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transfer basis and not on sale. This is clear from the invoices placed on record which clearly mention that the clearance is on stock transfer basis. When the clearances were not on sale but were purely on stock transfer basis, there is no question of the Satnoor unit having recovered the incidence of duty from the Abu Road unit and, as such, the bar of unjust enrichment would not apply. There is no undue benefit to the appellant company for the reason that as soon as Satnoor unit filed these refund claim, the Abu Road unit which had taken the Cenvat credit of the duty paid by Satnoor unit had reversed the Cenvat credit equal to the refund amount. It is neither the Department's claim nor any evidence to produce to show that during the peri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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