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2012 (7) TMI 231 - AT - Central ExciseWhether refund claim is liable to be rejected on ground of unjust enrichment u/s 11B - Held that:- As the respondent has not disputed the computation of assessable value of cigarettes after the decision of the Delhi High Court that duty at only concessional rate was deductible from the cum-duty price for determination of assessable value as the respondent has not challenged deduction of amount of Rs. 20,33,381.53 from the total refund of Rs.35,57,094.53. Therefore, the decisions relied upon by the respondents do not support their claim which is rejected on the ground of unjust enrichment. The invoice price charged to the buyers from 30.11.82 to 07.12.82 includes the duty amount calculated at the rate of 440% Adv. plus Rs. 32/- specific amount of duty paid and the duty paid in the ARI is calculated and paid under Notification No. 30/79 dated 01.03.79 plus 50% of the disputed amount shown in ARI and less than the duty amount charged in the invoices, thus it is clear that although duty has been charged at tariff rate from the buyers in the invoice, the total amount of duty paid to the Central Excise department as is evident from the ARI assessment is less than the amount recovered as duty from the buyers, the respondent has not been able to prove that the amount sought to be refunded by the assessee was not recovered from buyers - against assessee.
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