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TMI Blog2006 (7) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... aims made by the appellant relates to different period. The issue being common in all these appeals, they are being disposed off by the common order. 4. The brief facts of the case are as follows:- The appellants, M/s Diffusion Engineers Ltd., Nagpur is engaged in the manufacture of Flux Coded wire and welding electrodes in their Unit No. 1 at Plot No. T-5/6 MIDC Hinga, Nagpur. They have another unit at N-78, MIDC Nagpur (Unit No. II) engaged in repairing defective grinding rolls, vessels, .worn out table liner, rollers liners etc. on job work basis, which are sent to Unit No. II by their customers. After the requisite repairing work, they are returned to its suppliers who pay the job charges to the appellants. The welding electrodes and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Solar Pesticide Pvt. Ltd. reported in 2000 (37.) RLT 251 (SC) 2000 (116) ELT 401 (S.C.). Adjudicating authority as well as the Commissioner (Appeals) held that the refund claims were hit by principles of unjust enrichment and therefore ordered to credit the same to the Consumers Welfare Fund. Hence these appeals. 7. Commissioner (Appeals) in his impugned order observed that though the earlier Order-in-Appeal No. RK/7/NGP-1/2003 passed by the Commissioner (Appeals) speaks that the appellants are entitled to refund of excess duty paid by them, there was no specific direction to pay the excess duty amount to the appellants. Further, his observation is that the appellants had made an agreement with the 3rd party for certain job work on some m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised. The learned Commissioner (Appeals) failed to appreciate this fact and place the burden on the appellants. The learned Commissioner erred in relying upon the Supreme Court judgment in Solar Pesticide P.Ltd. case because the facts of the appellants case are different from those involved in the case of Solar Pesticide. In that case the imported raw material was utilized in the manufacture of final product which were sold and therefore the court had held incidence of such duty on the imported raw material have been passed on to the buyer indirectly. In the present case the welding electrodes were not used in the manufacture of any final product which were sold and therefore the ratio of Solar Pesticide case is not applicable. Lastly th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not come within an ambit of sale to buyer. It is undisputed fact that unit No. II is engaged in doing job work for which welding electrodes are required to be used. The raw material not being totally consumed for each piece of job work. The quantum of raw material consumption depend on the quantum of job work received. After repairing or reconditioning goods they are being given back to the same person from whom they have received. In other words it is to be said that the raw material received by unit No. II is not. being captively consumed in the manufacturing of final product as there is no emergence of new product, which is being sold. Unit No. II is simply attending to the job work and collecting job work charges after redelivering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td.08.11.2004 in Appeal No. E/1170/ 05 the adjudicating authority had recorded a finding that since the work contract is silent about element of excise duty it cannot be conclusively said that burden of excise duty has been passed on to the customers. This would lead to the only inference that the department had no evidence with them to prove that the appellant had passed on the incidence of duty to any other person. In this background of case facts it can be said that the presumption under Section 12B of the act is not applicable. Therefore, the refund claims of the appellants is not hit by the principle of unjust enrichment, as no incidence of duty has been passed on to third party. 11. In view of aforesaid finding, the impugned orders i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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