M/S. Parry Agro Industries Ltd vs Commissioner Of Central Excise, Salem
- CitationAppeal No.306/04
Ratio decidendi
The rule this decision rests on
A manufacturer that is not itself a bought-leaf factory, and that sends leaves to a job worker for processing, is entitled to claim refund of duty paid on the processed goods where the job worker was held not to be a bought-leaf factory and so not entitled to the exemption under Notification No. 41/99-CE; the duty was not payable in the first place, so the refund claim does not founder on unjust enrichment.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No.306/04 CE{SLM], dated 30.06.2004 passed by the Commissioner of Central Excise (Appeals), Salem ]
M/s. PARRY AGRO INDUSTRIES LTD. APPELLANT
Versus
COMMISSIONER OF CENTRAL EXCISE, SALEM RESPONDENT
Appearance:
For the Appellant Shri R. Suresh, Adv.
For the Respondent Shri B. Balamurugan, AC (AR)
CORAM:
Honble Shri D.N. Panda, Judicial Member Honbe Shri R. Periasami, Technical Member
Date of hearing/decision 30-04-2015
FINAL ORDER NO. 40500 / 2015
Per D.N. Panda:
The precise question in this appeal is whether the appellant M/s. Parry Agro Industries Ltd., which is not required to pay duty being a leaf factory but duty paid on its leaves processed by the job worker entitles the appellant to the refund thereof or the job worker? 2. Learned Commissioner (Appeals) has decided that the job worker is not entitled to refund not being a bought leaf factory. Once there is no dispute that the job worker was not a bought leaf factory, following the ratio laid down in the case of Commissioner of Central Excise, Mumbai-II Vs Allied Photographics India Ltd. reported in 2004 (166) E.L.T. 3 (S.C.) appellant is entitled to refund. Since learned Commissioner (Appeals) in para 6.3.2 of his order recorded that in Order-in-Original No.275/2004-CE(SLM), dated 04.06.2004 the Job worker M/s. Thangamalai Factory Pvt. Ltd., was held to be not eligible to avail exemption granted by Notification No.41/99-CE, dated11.1999 as it had not fulfilled the condition of purchase of bought leaves stipulated in the explanation appended to the said notification.
4. In view of the above finding of the learned Commissioner (Appeals), the bought leaves sent by the appellant to job worker for processing was not liable to duty. Accordingly question of unjust enrichment does not arise because the Adjudicating authority himself has recorded that the claim of the appellant was that the duty on the job worked goods was paid under protest.
(Dictated and pronounced in open court)
(R. PERIASAMI) (D.N. PANDA) TECHNICAL MEMBER JUDICIAL MEMBER
ksr 06-05-2015
DRAFT Remarks
I II III
Date of dictation 22.04.2015
Draft Order - Date of typing 05.05.2015 06.05.2015
Fair Order Typing 06.05.2015
Date of number and date of dispatch
4 E/01240/2004
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