Page 110 - ELT_1st August 2020_Vol 373_Part 3

292 EXCISE LAW TIMES [ Vol. 373

“But assessee have simply submitted that instant refund claim has become
due on account of final assessment of yarn used and consumed captively
and therefore, question of passing of duty incidence does not arise. They al-
so invited attention to the case of C.C.E. v. Dynomac Pumps, reported in 1999
(113) E.L.T. 513 (T) wherein it has been held that where the goods are cap-
tively consumed, there is no question of passing on incidence of duty to an-
yone else since the goods are not sold to anyone else.”
6. He has taken us to the reply which was filed. Para 3 of the reply
reads as under :-
“At the outset, we wish to submit that the show cause notice is wholly mis-
conceived, patently wrong and void ab initio, inasmuch as it seeks to deny
the refund claim on the ground that the noticee has not submitted any doc-
umentary evidence showing that the duty incidence in the matter has not
been passed on to any other person and has been borne by them. Your hon-
our will appreciate the fact that in the instant case it is an undisputed fact
that the refund claim of Rs. 1,06,335/- filed by the noticee on 16-6-2000, was
consequential of the final assessment issued vide order No. C.E.-
20/BSL/Provisional/97-98/1057, dated 7-6-2000, pertaining to the period
from April, 1997 to March, 1998, in respect of the Yarn consumed captively
for weaving of fabrics by the noticee in their weaving division. Thus, it is an
undisputed fact that the refund claim was consequential of the final as-
sessment of the yarn manufactured and consumed captively by the noticee
in their own weaving division. In this respect the legal position is very well
settled that, where the goods are captively consumed, there is no question
of passing of incidence of duty to anyone else, since, the scheme of unjust
enrichment envisaged the direct transfer of burden of duty alongwith sales
of goods to the buyers.
In the above premise appellants has supplied a copy of the judgment ren-
dered by Hon’ble Tribunal in the case of Commissioner, Central Excise, Indore
v. Dynomac Pumps, reported in 1999 (113) E.L.T. 513 (Tribunal), wherein it
was categorically observed by the Hon’ble Tribunal at para 3 that, “we have
gone through the submissions of the Ld. S.D.R. and perused the records.
We observe that the Collector, in the impugned order, has rejected the De-
partment's appeal filed before him following the decision of the Bombay
High Court in the case of Solar Pesticides Ltd. v. U.O.I. (supra). This Tribunal
has followed the ratio of this decision in a large number of cases. The Bom-
bay High Court has held that where the importer used the goods himself,
there is no question of passing on incidence of duty to anyone else since the
goods imported are not sold to anyone else. Hence he gets the refund. The
Bombay High Court further held that the scheme of Unjust Enrichment in-
troduced by amendment of the Act envisaged the direct transfer of burden
of duty along with the sales of the same goods, which were imported to the
buyers. In the case of captive consumption, the duty paid on the new items
and it will not be possible for the buyers of the finished produce who claim
the refund of duty as provided in proviso (e) to Section 11B(2) of the Cen-
tral Excise Act. Following the ratio of the Bombay High Court decision, we
reject all the appeals filed by the Revenue.
In continuation to above, we have to state and submit that the factual and
legal submissions made in the foregoing paras are undisputed and has been
specifically admitted in the Show Cause Notice. But amazing the show
cause notice is silent on the point as to how the said judgment is not appli-

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