CCE Vs. UNIKIL PESTICIDES (P) LTD.

JUDGEMENT

(1.) REVENUE filed this appeal against order -in -appeal No. 270 -CE/BPL/2006 dated 22.03.2007 passed by the Commissioner (Appeals), Bhopal whereby review application filed by the Revenue was rejected and the adjudication order was upheld.

(2.) THE relevant facts of the case, in brief, are that the respondents were engaged in the process of diluting the highly concentrated form of pesticides for the purpose of marketing. The respondents filed a refund claim of Rs. 6,55,000/ - paid under protest as the process undertaken by them does not amounts to manufacture. By adjudicating order dated 20.11.95 the Asst. Commissioner of Central Excise rejected the refund claim on the ground that the goods produced by them are to be excisable in terms of Board's circular No. 40/2/95 -CE dated 27 July, 1995. Meanwhile the similar matter went before the Hon'ble High Court of Delhi. The Hon'ble Delhi High Court held that such process of dilution does not amount to manufacture as reported in . Revenue filed appeal before the Hon'ble Supreme Court against the order of the Delhi High Court which was dismissed as reported in . The Commissioner (Appeals) while deciding the appeal against the adjudication order dated 20.11.95 held that in view of the decision of the Hon'ble Supreme Court the respondents are eligible for refund claim. It has been observed that the refund of duty was paid under protest by TR -6 challan admissible to the respondents. The Commissioner (Appeals) allowed the credit of duty of Rs. 6,55,000/ - to be re -credited in their PLA/Cenvat account. In compliance of the order of the Commissioner (Appeals) the respondents took the credit of Rs. 6,55,000/ - in their PLA vide entry Serial No. 1 dated 28.11.2004 and utilized partly. Thereafter, they were availing SSI exemption and, therefore, the respondents by the letter dated 9 June, 2005 requested the Asst. Commissioner to refund the amount of Rs. 4,99,000/ - which was lying unutilized in their PLA account. By order -in -original dated 21/22.9.05 the Asst. Commissioner refunded an amount of Rs. 4,99,000/ - lying unspent in their PLA account. Revenue filed appeal before the Commissioner (Appeals) against the adjudication order dated 21/22.9.2005 which was rejected. Hence, the Revenue filed this appeal against order of the Commissioner (Appeals).

(3.) LEARNED Advocate on behalf of the respondents reiterates the findings of the Commissioner (Appeals). He submits that the respondents originally filed refund claim of Rs. 6,55,000/ - which was allowed by the Commissioner (Appeals) vide order dated 4.11.2004. Revenue had not challenged the said order. He further submits that in the present case original authority allowed the refund of PLA balance lying unspent. Hence, it is not hit by principle of unjust enrichment.