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2010 (11) TMI 300 - AT - Central ExciseRefund - Limitation - The assessee at any stage asked for provisional assessment under Rule 9B of the Central Excise Rules, 1944, nor that any permission for such assessment was given by the jurisdictional Assistant Commissioner - The decision of the learned Commissioner (Appeals) in relation to the refund claims beyond six months from the relevant dates cannot be faulted - The Assessee’s appeal is therefore dismissed. Refund - Unjust enrichment - Proof - The goods in question were stock-transferred from factory to depot and subsequently cleared from the depot to the buyers - At the time of clearance of the goods at the factory gate, duty of excise was paid on assessable value which was determined after deduction of certain amounts of discount allowed to the ultimate buyers - When the goods were cleared to those buyers from the depot, a higher discount was allowed which was reflected in the invoices issued to them. However, these invoices did not separately indicate the amount of duty collected from the buyers - The burden was all the more for the assessee to establish that the burden of duty had not been passed on to the buyers - The learned counsel has submitted that (i)the buyers were also aware of the higher discount before the clearance of the goods from the depot (ii)such discount was actually given to the buyers by way of recovery of a part of the price by the assessee from the buyers (iii)the assessee issued credit notes to their buyers for taking back the differential duty burden - The assessee has not challenged the finding of the lower appellate authority that there is no evidence of any such credit notes have been issued by them to their buyers for taking back any duty burden - Thus, refund claims are barred by unjust enrichment.
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