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2024 (2) TMI 665 - CESTAT MUMBAIRefund of the excess amount that was subsequently refused to be paid to the Appellant by the Refund Sanctioning Authority - Finalization of provisional assessment - Sale through C & F Agents/Depot/Consignment agent - Appellant failed to discharge the burden of Unjust Enrichment - HELD THAT:- The refundable amount accrued in favour of the Appellant was on account of duty paid by it while making temporary clearance from the depot under Rule 7 and the duty actually received from the customers at the time of sale and clearance of goods to them. There is no dispute that the actual discount or sale at a lesser price was not extended to the customers since, the Assistant Commissioner has noted in his findings at Para 5 that Superintendent had verified the reports and statements concerning clearance of goods at the factory gate and at the C & F Agents and submitted his report that discounts were actually passed on by the C & F Agents to the dealers, as indicated in their invoices. This being so, the entire amount of excess payment of duty can be considered as borne by the Appellant alone, since duties from the customers/ dealers were actually realized at C & F Agents end and paid to the department. In such fulfilment of the procedural requirement there would be hardly any scope that Appellant would be able to collect duty element separately from its customers & dealers to compensate the duties paid by it at the ex-clearance from the factory gate. It is apparently keeping these provisions in mind, the provision of refund of differential duty after financial assessment is codified in Rule 7 itself, in which Department would have refunded the amount on its own without any refund application being filed under Section 11(B) of the Central Excise Act, 1944 and burden of examination of passing/non-passing of duly element would have been done by itself. Having regard to the fact that this is a case where refund should have been granted immediately upon final assessment, the following order is passed - Appeal allowed.
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