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2015 (11) TMI 1344 - AT - Central ExciseDenial of refund claim - remission of duty - damaged / destroyed goods - Misdeclaration of value - Held that:- Before clearance of the goods and during the process of loading, one of the drums fell down as a result of which its content got damaged and as a result of this the consignment itself was not despatched and the same was dispatched subsequently under the invoice no. 1815 dated 31/3/2003. There is also no dispute at the time of clearance of the goods under invoice no. 1815 dated 31/3/2003 the duty had been paid once again. From this, it is clear that in respect of the second drum for which the appellant had not claimed any reimbursement from the insurance company the duty had been paid twice. In our view, the provision of Rule 16 of the Central Excise Rule, are not applicable as the goods had been damaged when the same were being loaded in the factory. In view of this, we hold that there is no infirmity in the Commissioner (appeals) order sanctioning the refund. - Decided in favor of assessee. If prior to the period of supply, the rate at which the goods were to be supplied had been decided and the same was reduced only subsequently, the judgment of Apex Court in the case of MRF Limited Vs. CCE Madras [1997 (3) TMI 104 - SUPREME COURT OF INDIA] would be applicable and the respondent would not have eligible for refund. For ascertaining this factual position, the matter has to be remanded - while the Commissioner (appeals) s order in respect of the refund claims of ₹ 26,702/- and 1701/- is upheld his order in respect of the refund claims of ₹ 1,48,253 and 87,479/- is set aside and the matter is remanded to the original adjudicating authority for de-novo adjudication - Decided party in favour of Revenue.
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