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2014 (12) TMI 157 - AT - Central ExciseProvisional assessment - Adjustment of excess payments against short payments - Valuation of goods - Sanction of refund during provisional assessment - Held that:- From the records, it is seen that the assessments for the quarters October to December, 2008 and January to March, 2009 were finalised and the refunds sanctioned. The assessments for these quarters were not appealed against by the Revenue before the lower appellate authority and, therefore, they had become final. If the assessment had become final, the time limit that would apply would be from the date of finalisation of the assessment and if the show cause notices have been issued after a period of one year from the date of finalisation of assessment, they would be clearly time-barred. Therefore, in respect of these two quarters, the contention of the appellant that the show cause notice is time-barred has merit. There is an error committed by the adjudicating authority by taking the transaction value at which the greatest aggregate quantity of goods were sold, we observe that as per Rule 2(b), normal transaction value means the transaction value at which the greatest aggregate quantity of goods are sold and, therefore, this is the price which has to be adopted for determination of transaction value at the time of removal of the goods from the factory. Therefore, this finding of the lower appellate authority is clearly wrong. If the appellants are able to show that they have not passed on the duty burden and have borne the duty burden by themselves, then there is no bar under Rule 7 of the Central Excise Rules relating to provisional assessment for adjustment of excess payments against short-payments. However, this is a pure question of fact which needs verification. If the assessee is able to produce documentary evidences in support of their claim that where-ver they have made excess payments they have not passed on the duty incidence but have borne out themselves, then such excess payments can be adjusted against short-payments of duty and the bar of unjust enrichment will not apply. - Matter remanded back - Decided in favour of assessee.
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