Gmm Pfaundler Ltd. vs Commissioner Of Central Excise on 13 May, 2005

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Customs, Excise and Gold Tribunal – Mumbai
Gmm Pfaundler Ltd. vs Commissioner Of Central Excise on 13 May, 2005
Equivalent citations: 2005 (103) ECC 77, 2005 (191) ELT 1200 Tri Mumbai
Bench: A Wadhwa


ORDER

Archana Wadhwa, Member (J)

1. The appellants are engaged in the manufacture of Glass Lined equipment and parts thereof falling under Chapter 84 of Central Excise Tariff Act, 1985. They filed a refund claim of Rs. 71,670 on 25.2.2000 on the ground that they had erroneously paid duty on Glass lined Jacketted Pan cleared under AR3A dated 5.12.99 to M/s. Protchem Industries (I) Ltd,. Pondicherry, which was 100% EOU and have provided CT 3 Certificate No. 067/99, dated 12.8.99 as issued by the Superintendent of Central Excise incharge of the buyers unit. In terms of Notification No. 1/14-C.E., dated 10.11.84, clearance to such unit was exempted from payment of duty. On the above basis, the appellants were issued a show cause notice proposing rejection of refund claim on merits as also on the point of unjust enrichment. The same was rejected by the adjudicating authority. On appeal against the above order, Commissioner (Appeals) rejected the same on the ground the purchase order does not contain any description of the goods as per Annexure-I of the Notification No. 36/94 dated 10.11.94 so as to satisfy that the said goods are required for the production or manufacture for packaging of article specified under Annexure-I of the said notification. He also observed that the requisite procedure of clearing the goods to 100% EOU in terms of Notification No. 136/94 was not followed.

2. The appellant’s grievance is that the procedure could not have been followed because the goods were cleared on payment of duty. If they would have removed the goods under cover of AR3, there was no question of payment of duty and subsequently refund claim. I agree with the above contention. The question of not following the procedure would not arise, according to the appellant when payment of duty was erroneous without realising that their buyer were issued CT 3 certificate, being a 100% EOU. As such, if the appellant can otherwise establish that the goods which were sent by them to Protchem Industries (I) Ltd. where covered under notification in question, they would be entitled to refund. For the said purpose, I remand the matter to the lower adjudicating authority who would examine the same afresh on merits as also on the point of unjust enrichment, which factor was not considered because the refund was rejected on merits. Appeal is disposed off in above terms.

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