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TMI Blog2016 (3) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... gauges was charged as expenditure during the respective years. The fact that it has been charged as expenditure indicate the facts that the same has been recovered from the customer. In view of the above, the appellant failed to establish that there was no unjust enrichment in the instant case. - Refund not allowed. - Appeal No. E/3213 & 3686/05 - A/86463-86464/16/EB - Dated:- 10-3-2016 - SHRI S.S. GARG, MEMBER (JUDICIAL) AND SHRI RAJU, MEMBER (TECHNICAL) For the Petitioner : Mr. S. Chandrashekhar, Manager (Excise) For the Respondent : Shri N.N. Prabhudesai, Supdt. (AR) ORDER PER: RAJU The appellants are manufacturer of motor vehicles. During the period 1986 to July, 1992, assessment in respect of gauges was do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... governing on the subject matter. It reveals from the facts of the case that the gauges are used for inspecting the dimension/testing of the parts, thus, gauges can be considered as measuring tool. For the purpose of Notification No. 217/86, inputs does not include, machines, machinery, plant, equipment, apparatus, tools or appliances used for product or processing of any goods or for bring about any change in any substance in or in relation to the manufacture of the final product. In the instant case gauges being a measuring tool, the benefit of exemption Notification No. 217/86 would not be available to the product gauges used for captive consumption and hence, impugned order dated 24.11.2003 to that extent is not sustainable. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise Tariff Act, 1985 (5 of 1986); Provided that nothing contained in this notification shall apply to inputs used in or in relation to the manufacture of final products which are exempt from the whole of the duty of excise leviable thereon or is chargeable to nil rate of duty. Explanation. - For the purposes of this notification, inputs does not include - (i) machines, machinery, plant, equipment, apparatus, tools or appliances used for producing or processing of any goods or for bringing about any change in any substance in or in relation to the manufacture of the final products. Hon'ble Supreme Court in the case of Commissioner of Central Excise, Pune Vs. Tata Engineering and Locomotives Co. Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty under the 1986 Notification. The aforesaid observation of the Hon'ble Supreme Court came in respect of the decision of the Tribunal relied upon by the Commissioner (Appeals) earlier. Following the aforesaid decision of Hon'ble Supreme Court, it is held that the benefit of Notification No. 217/86 would be available to the gauges consumed captively. Accordingly, appeal No. E/3213/05 is allowed. 5. Consequent to the first order of Dy. Commissioner allowing the benefit of Notification No. 217/86, the appellant filed a refund claim of the following duty paid: - Description Amount 1. PLA F No. 8320 dated 18.11.1992 (duty for gauges captively consumed during the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Solar Pesticides (supra) has held that doctrine of unjust enrichment is attracted even in case of duty paid in respect of captive consumption. It is seen that the Hon'ble Supreme Court in case of Allied Photographics (supra) has further given its decision regarding applicability of doctrine of unjust enrichment to the duty paid under protest after considering the decision of Hon'ble Supreme Court in case of Sinkhai Synthetics (supra). 8.1 In view of the above, the doctrine of unjust enrichment is attracted in the instant case. We find that the appellant had failed to produce any original records before the adjudicating authority and their claim to lack of the unjust enrichment is based solely on the C.A. certificate. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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