COMMISSIONER, CENTRAL EXCISE, NAGPUR Vs. DIFFUSION ENGINEERS LTD , NAGPUR AND ANOTHER
HIGH COURT OF BOMBAY
Commissioner, Central Excise, Nagpur
Diffusion Engineers Ltd , Nagpur And Another
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(1.) Mr.Bhattad, learned Counsel for the Revenue states that only one appeal was filed from the order disposing of five appeals. The Court fees payable for further four appeals have been paid. In the above view, the requirement of filing four additional appeals are dispensed with.
(2.) This appeal u/s.35(G) of the Central Excise Act, 1944 ("the Act") challenges the order dt.13.7.2006 passed by the Central Excise Service Tax Appellate Tribunal, Mumbai (the Tribunal).
(3.) This appeal was admitted on 23.10.2007 on the following substantial questions of law :
1)Whether in the facts and circumstances of the case and in law the Tribunal is right in holding that the refund claim of Respondent No.1 is not hit by the principle of unjust enrichment, as no incidence of duty has been passed on to third party, especially when it was conclusively proved that the Respondent No.1 while calculating the total job-work charges, had included the element of excise duty paid on raw material used for the said job-work ?
2)Whether in the facts and circumstances of the case and in law the Tribunal is right in holding that revenue is not entitled to the presumption under Section 12B ibid by placing reliance upon the decision of the CESTAT in the case of Commissioner of Central Excise, Bhopal vs. PCC Police Factory, 2002 143 ELT 649 (Trib.Del)] especially when this decision has been overruled by the Hon'ble CESTAT Bangalore [2005 11 ELT 187 (Trib.Bag.)] in the case of Commissioner of Central Excise, Calicut vs. Kerala State Electricity Board by relying on the case of Hon'ble Supreme Court decision in the case of Solar Pesticides Pvt. Ltd., 2000 116 ELT 401 (S.C.)] ?;
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