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TMI Blog2019 (9) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-Rule 6 of Rule 6 of Cenvat Credit Rules, 2004 and therefore, exempted from the provision of sub rule (1), (2), (3) (4) of the Rule 6 of Cenvat Credit Rules, 2004. Rebate claim - rejection of claim was that the goods cleared by the appellant were exempted under notification 12/2012-CE dated 17/03/2012 and, therefore, the payment made by the appellant was not duty and in these circumstances, no claim of the refund can be filed - HELD THAT:- In view of the fact that the goods are exempted and not liable to pay duty, however, the appellant chose to pay duty knowingly, is also established from the fact that in the other unit of the appellant, the appellant was asked to reverse the said amount, which the appellant did on 16.06.2011. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HON'BLE MEMBER (TECHNICAL), MR. RAJU Present For the Appellant: Shri H.P. Kanade, Advocate Present For the Respondent: Shri S.N. Gohil, Supdt. (AR) ORDER RAJU This appeal has been filed by M/s Macleods Pvt. Ltd. against rejection of refund claim. 2. Ld. Counsel for the appellant argued that the issue is if refund of duty paid voluntarily on goods otherwise exempted can be denied when the goods in fact have been exported. Ld. Counsel pointed out that they are engaged in manufacture of P P medicaments. They have cleared medicament namely Monopas 05 for export on 07/07/2013 and 09/07/2013 on payment of duty, under cover of ARE-I under c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey had produced necessary documents in support of the reversal before Commissioner (Appeals). However, the said documents were rejected on the ground that the same were not produced before the Original Adjudicating Authority. Ld. Counsel further pointed out that the Order in Appeal relied on section 5A (1A) to assert that it is not open to the appellant to pay duty which are unconditionally exempted. Relying on the aforesaid provision the impugned Order upholds the rejection of refund claim. Both, OIO and OIA, take into consideration the fact that in case of sister concern of the appellant, namely M/s Macleods Pharmaceuticals Unit-II also, there was erroneous payments of duty on such exempted goods and the same was recovered by Revenue. Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to pay duty, however, the appellant chose to pay duty knowingly, is also established from the fact that in the other unit of the appellant, the appellant was asked to reverse the said amount, which the appellant did on 16.06.2011. In the instant case, the appellant has chosen to pay duty in the year 2013 and thus, it can be said that it was a voluntary act. In the above factual matrix what emerges is that the appellant who was not liable to pay duty on these exempted goods and who sought to export the same under claim of rebate by paying duty, has sought refund on said duty paid under section 11B. The admissibility of refund cannot be judged on the basis of the fact whether the appellant paid the duty voluntarily or otherwise. The admissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve recovered the entire duty equivalent amount from the foreign buyers and, therefore, any duty would amount to unjust enrichment. In this regard, the appellant have not disputed that the amount recovered by them reflected in the bank realization certificate is inclusive in the duty element. The appellant have relied on the decision of Joint secretary of Govt. of India in the case of Indian Oil Corporation Ltd. 2006 (197) ELT 435 (GOI) to assert the principle of unjust enrichment is not applicable in their case. Revenue was given an opportunity to produce any decisions in its favour. In the written submission given by Revenue vide their letter dated 14/058/2019, they have cited various decisions. However, none of them relates to the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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