9911796707
TMI Blog2008 (1) TMI 775X X X X Extracts X X X X X X X X Extracts X X X X ..... 70 00 of the First Schedule to the Central Excise Tariff Act, 1985 ; that the appellant received purchase order from M/s. Sankar NP Japan (P) Ltd., Chennai for supply of K-SOE gasket for 5000 quantity ; that the appellant cleared the goods to the said customer vide Invoice No. 00135 dated 30-4-2005 ; that the rate charged for the said clearance is Rs.100/- per kg ; that after due verification it was found that the said customer is in the list of discount structure and discount @ 30% on value was allowed to him vide credit note for Rs. 1,56,066/- in the month of March, 2006 ; that the appellant also received confirmation from the customer as he is not paying the said amount ; that in the month of March, 2006 after receiving confirmation from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd duty paid on the basis of price in previous contract - assessee voluntarily paid differential duty to exchequer in case of price escalation - similar treatment be meted out to assessee by department - appellant entitled to refund in case of reduction in price - Section 11B of Central Excise Act, 1944 (para 6)"; (iii) that the Hon'ble CESTAT in the case of GIS Cotton Mills Ltd. v. CCE [2006 (197) E.L.T. 370] has held that "refund - excess duty paid when goods cleared from factory, having been sold at lesser value from depots - refund claim denied by department as no scope for re-determination of value on basis of depot price at a subsequent date - department realized duty from assessee, where duty was short paid by them, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the appellant is clearly eligible for refund. However, he submitted that the adjudicating authority has not given any finding either with reference to time limit or unjust enrichment. He has simply concluded that once the duty is paid on the transaction value the same cannot be reopened. It is not correct in view of the citations enclosed alongwith appeal memorandum. 4. I have gone through the case records including the record of personal hearing. The only issue to be considered in the appeal on hand is whether the appellant is entitled for refund of Rs. 24,490/-. The adjudicating authority rejected the refund claim holding that "the amount paid by the assessee to the buyer at any subsequent time shall not form the part of transacti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 11B of the Central Excise Act, 1944 and the third thing to be seen is whether the claimant has come up with documents to prove that he has not passed the duty incidence to any person. But in the instant case no findings are available with regard to time limit and principle of unjust enrichment. The adjudicating authority has simply rejected the refund holding that once the transaction value is completed it cannot be re-opened. This a new thing he is importing. Once this contention is accepted the word used in Section 4 viz. "price actually paid or payable" for the goods, will become meaningless. Accordingly the appellant is clearly entitled for refund of Rs. 24,490/-. The ratio of the case laws mentioned at para 2(ii) & (iii) supra al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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