HVN IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO. 56 OF 2007 CENTRAL EXCISE APPEAL NO. 56 OF 2007 CENTRAL EXCISE APPEAL NO. 56 OF 2007 Commissioner of Central Excise ... Appellant Versus M/s. Jain Irrigation Systems Ltd... Respondent Mr. K.R. Choudhari with Mr. H.P. Chaturvedi and Smt. H.P. Shah for the Appellant. Mr.M.H. Patil for the Respondent. CORAM: F.I. CORAM: F.I. CORAM: F.I. REBELLO REBELLO REBELLO & R.S. MOHITE, JJ. R.S. MOHITE, JJ. R.S. MOHITE, JJ. DATED: MARCH 13, 2008 DATED: MARCH 13, 2008 DATED: MARCH 13, 2008 P.C. P.C. P.C. . The Revenue has preferred this appeal on the following questions : "(a) Whether the Hon’ble CESTAT was justified in upholding the order of Commissioner (Appeals) granting refund without considering any documentary evidence that the duty paid raw material procured has been use in the final product exported and the value of goods exported by Respondents does not include any duty element? (b) Whether the Hon’ble CESTAT was justified in upholding the order of the Commissioner (Appeals) which is based on the chartered engineers certificate certifying the duty incident is not taken into consideration while working out the cost of production who is not competent to issue such certificate?" . At the hearing of this appeal, on behalf of the Revenue, their learned counsel submits that the goods were not exported and as such doctrine of unjust enrichment would apply in respect of the inputs used in the manufacture of the goods. . The ground No. 4 of the appeal Memo reads as under : "The Hon’ble CESTAT ought to have set aside the order of Commissioner (Appeals) in granting refund without considering any documentary evidence that the duty paid raw material procured has been used in the final product exported and the value of goods exported by Respondents does not include any duty element." . From this ground alone, it is clear that the Revenue itself admits that the goods were exported. Apart from that from the order of the Commissioner (Appeals), the contention raised by the Revenue may now be set out. "But since claimant has procured raw material on payment of duty, he might have added duty element, while costing his final product for export..." . Further contention was : "The Claimant has not produced documentary evidence that value of goods exported by them does not include duty element." . In other words, no where is it contention of the Revenue that the goods were not exported. . We may now refer to Section 11(b)(2) Proviso (a) which reads as under : "rebate of duty of excise on excisable goods exported out of India or on excisable material used in the manufacture of goods which are exported out of India." . There is no dispute that the excising materials were used in the manufacture of goods. The only dispute was whether the goods are exported out of India. As we have pointed out, before the authorities below including before this court, the Revenue itself has not disputed that the goods were exported except for the oral argument now sought to be advanced which is based on no material. . In respect of the similar issue in the case of Indo Nippon Chemicals Co. Ltd. Vs. Union of India 2005 (185) E.L.T. 19 (Guj) the Gujarat High Court in Para 36 noted as under : "It is undisputed position that credit was taken on the inputs used, in manufacture of goods for export. Therefore, there was no question of passing on the burden of excise duty to the transferee that is foreign buyer..." . The revenue had preferred the appeal to the Supreme Court which was dismissed. . In our opinion, considering the express language of Section 11B(2) Proviso and findings, the question as raised would not arise and consequently the present appeal stands dismissed. (R.S. MOHITE, J.) (R.S. MOHITE, J.) (R.S. MOHITE, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.)