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2018 (4) TMI 611 - AT - Central ExciseRefund claim - finalization of provisional assessment - unjust enrichment - captive consumption - time bar - Held that: - refund claim was filed admittedly within one year from date of submission of CAS-4 certificate, only on obtaining CAS-4 certificate appellant could established excess payment of duty - the refund claim filed after finalisation of the price i.e. on submission of CAS-4 certificate, refund is well within time period of one year - refund claim is not time barred. Unjust enrichment - submission of the appellant is that since the goods were cleared to their own unit which amounts to captive consumption there is no sale of the goods, hence the incidence of duty paid in excess was not passed on - Held that: - even in respect of captive consumption, unjust enrichment provision is applicable as held by Hon'ble Supreme Court inc case of Union of India vs. Solar Pesticides Pvt. Ltd. [2000 (2) TMI 237 - SUPREME COURT OF INDIA] - it is obvious that when the goods is sold all the cost of raw material including taxes, duties thereof is considered for arriving at the cost of final product. Since the appellant and the recipient unit are under the same umbrella of one company, balance sheet of company consist of final sale transaction takes place by all the units therefore whether there is sale between appellant and their own recipient unit or otherwise that cannot be sole factor to decide that there is no unjust enrichment - the factual matrix has to be ascertained that whether excess duty paid by the appellant was absorbed in the value of the Pan Masala and Gutkha, only thereafter it can be established that whether the incidence of duty has been passed on to any other person or otherwise. Since no exercise has been carried out on this factual aspect, in the interest of justice one opportunity can be extended to the appellant to prove that incidence of excess paid duty has not been passed on or otherwise - appeal allowed by way of remand.
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