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TMI Blog2003 (6) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... t captive consumption of capital goods. We also note that the Apex Court in the noted judgment has distinguished their judgment in the case of Bhadrachalam Paperboards Ltd. v. Govt. of Andhra Pradesh [ 1998 (8) TMI 93 - SUPREME COURT] . The learned JDR has invited our attention to the decision of the West Zonal Bench of the Tribunal in the case of CC (Import) v. Godrej Boyce [ 2001 (2) TMI 233 - CEGAT, MUMBAI] it was held that the judgment of the Supreme Court in the case of U.O.I. v. Solar Pesticides [ 2000 (2) TMI 237 - SUPREME COURT] makes it clear that the doctrine of unjust enrichment would apply to capital goods also. As noted above, the above noted judgment of the Hon'ble Apex Court in the cases of Solar Pesticides does not say anything about capital goods and it deals only with captive consumption of imported raw material. Be that as it may, in the instant case, the facts are entirely different as noted above as capital goods viz. ESPs have been only used captively for pollution control purpose and the same were not used for processing or manufacturing of any final product, hence there is no question of passing of the burden of duty to anyone. Thus, we are of the consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of the certificate issued by the Ministry of Environment and Forest, BHEL claimed refund of the excess duty but their claim was rejected by the department on the ground of unjust enrichment. Thereupon, the appellants filed refund claim for a sum of Rs. 27,74,399/- vide their claim dated 19-8-1992 before the proper officer being the amount of duty paid in excess of the 5% and the said refund claim was rejected by the Assistant Commissioner on the ground that full ESPs had not been supplied. Aggrieved by the said order the appellants filed appeal before the Commissioner (Appeals) who remanded the matter back to the Assistant Commissioner to reconsider the issue. The Assistant Commissioner in the de novo proceedings by his Order-in-Original No. 6/94, dated 10-6-94 rejected the claim of the appellants. Subsequently the Central Board vide Trade Notice No. 123/94, dated 14-9-94 clarified that ESPs can be supplied in parts in SKD or CKD condition. In view of the clarification issued by the Central Board, the appellants again went in appeal before the Commissioner (Appeals) and the Commissioner (Appeals) allowed the appeal of the appellants vide Order-in-Appeal No. 226/94 (M), dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re eligible for refund in the facts of the present case where they have paid duty in excess of what was required to have been paid by law. He, therefore, prayed for allowing the appeal. 4. Shri A. Jayachandran, learned JDR appearing for the Revenue, reiterated the view taken by the Commissioner (Appeals). He has also referred to the para-wise comments on the grounds of appeal, submitted to him by the Additional Commissioner (Judicial) of the Central Excise, Chennai-III, a copy of which is placed in the file. It is stated therein that the Commissioner (Appeals) has taken into consideration the facts on record and the grounds put forth by the department and the impugned order is correct in law. It is also stated therein that as per Section 11B while sanctioning refund, due care has to be taken whether the duty burden has not been passed on to the customers and in the instant case, the assessee has not produced any evidence to show that the duty incidence has not been passed on to the customers and therefore, in terms of Section 12B, the burden cast on the assessee has not been discharged by him and hence the order passed by the Commissioner (Appeals) is in order. It is also stated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtracted and relied upon an order passed by his predecessor in the case of Onxy Marble India reported in 1996 (87) E.L.T. 770, wherein the Commissioner (Appeals) had discussed about the depreciation on capital goods and also the provisions of the Income-tax Act in the case of refund claim pertaining to capital goods, and following the ratio of that decision of the Commissioner (Appeals) has held that since the appellants herein have not substantiated their claim with evidence to prove that the duty has not been loaded on to their products, the order of the original authority granting refund of Rs. 27,66,970/-, was not in order. We are not able to share the view taken by the Commissioner (Appeals) whose order has been relied upon by the lower appellate authority in the present case. We are of the considered opinion that there was no necessity for the Commissioner (Appeals) to have injected the provisions of the income-tax into the present dispute where we are dealing with a dispute arising out of the Central Excise Act. The dispute before us pertains to eligibility to refund in respect of capital goods on which excess duty has admittedly been paid and what was required to be seen wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our attention to the decision of the West Zonal Bench of the Tribunal in the case of CC (Import) v. Godrej Boyce reported in 2001 (135) E.L.T. 878 wherein, in Para 7 it was held that the judgment of the Supreme Court in the case of U.O.I. v. Solar Pesticides (supra) makes it clear that the doctrine of unjust enrichment would apply to capital goods also. As noted above, the above noted judgment of the Hon'ble Apex Court in the cases of Solar Pesticides does not say anything about capital goods and it deals only with captive consumption of imported raw material. Be that as it may, in the instant case, the facts are entirely different as noted above as capital goods viz. ESPs have been only used captively for pollution control purpose and the same were not used for processing or manufacturing of any final product, hence there is no question of passing of the burden of duty to anyone. 6. In view of our discussion above, we are of the considered opinion that in the facts and circumstances of the case, the order-in-appeal passed by the Commissioner (Appeals), is not legal and proper and we set aside the same, restore the Order-in-Original No. 8/99, dated 31-1-99 passed by the origina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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