CCE Vs. STAR PAPER MILLS LTD.

JUDGEMENT

(1.) THIS appeal is directed against order in appeal dated 30th September 2004 that allowed the appeal of the respondent.

(2.) THE relevant fact that arise for consideration are respondent were paying duty on wrapping paper captively used by them and were availing modvat credit. Demand was raised on the appellant reversal of modvat taken by them in excess of Rs. 800 per metric ton. Issue was settled in favour of the respondent subsequent to which respondent filed refund claim. The said refund claim was rejected by the adjudicating authority and the matter was taken upto Hon'ble Supreme Court. Hon'ble Supreme Court directed that the adjudicating authority should consider the matter fresh in light of the decision of the Hon'ble Supreme Court in the case of Solar Pesticides. The adjudicating authority in the denovo proceedings again came to the conclusion that respondent is not eligible for the refund of the amount claimed by them on the grounds of unjust enrichment. On an appeal, Commissioner (Appeals) set aside the order in original and granted refund to the appellant under the provisions Section 11B(2) (c). Hence this appeal by the revenue.

(3.) THE learned SDR submits that the order in appeal of the Commissioner (Appeals) is not correct in as much that the Hon'ble Supreme Court in the respondent's own case has set aside the refund claim sanctioned by the Tribunal and directed the authorities to consider the issue of unjust enrichment. It is his submission that the order in appeal is wrong in as much that it travels beyond the provisions of the Section 11B of Central Excise Act, 1944. It is also his submission that once the appellant has captively consumed the goods, issue would get covered by the decision in the case of UOI v. Solar Pesticides .