2011 (11) TMI 420
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....2. The material facts of the case leading up to this appeal are as follows: The assessee filed an application for refund of Rs. 80,161/- on 17-5-2002 claiming that the assessee is an SSI unit and was availing notification No.9/2001 CE, dated 1-3-2001 and as per the said notification, the applicable rate of duty up to Rs. 1 Crcre value of clearances is 60% of normal rate of duty, i.e., 9.6% advance. But instead of paying duty at this rate, the claimant has paid duty at 12.8% advance for the period from 31-8-2001-to 12-12-2001 and the excess payment of duty amounting to Rs. 80,161/- was paid under mistaken impression that the duty has to be paid at 80% of normal rate after crossing the turnover or Rs. 50 lakhs. It is the further case of the ....
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....ingly, allowed the appeal and set aside the order passed by the assessing officer. Being aggrieved by the same, the assessee preferred an appeal before the CESTAT in E/523/2004. The said appeal was clubbed with other connected-appeals and by order dated 1-12-2006, the CESTAT held that, in view of the decision in the case of M/s. Gokak Mills Ltd. in the connected appeal, set aside the order passed by the first appellate authority and restored the order passed by the assessing officer. Being aggrieved by the same, this appeal is filed by the revenue contending that, the order of the first appellate authority was justified and the CESTAT was not justified in reversing the order passed by the first appellate authority. 3. The appeal was admitt....
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....to the extent of the reduced price." The learned counsel appearing for the revenue submits that in view of the aforesaid decision, the appeal may be allowed and the order passed by the CESTAT may be set aside. 6. The learned counsel appearing for the respondent submitted that the MRF Ltd. case (supra) cited by the counsel appearing for the revenue is not applicable to the facts of this case as there was payment of duty after the goods were cleared whereas in the present case, there is a mistake in making payment of duty at the rate of 12.8% where the assessee was to be paid at 9,6% only and the excess amount paid has been credited to the account of the consignee and the entire burden is borne by the assessee and the case of MRF Ltd. has b....
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.... insofar as the liability to pay excise duty was concerned." He has also relied upon the decision of the Division Bench of this Court in Sudhir Papers Ltd. v. CCE (CEA NO.30/2009, dated 28-3-2011] wherein in identical circumstances where excise duty had been paid and amount was credited to the consignee and duty was borne by the assessee only, the refund was ordered holding that conditions of Section 11B of the Act have been satisfied. 7. We have given careful consideration to the contentions of learned counsel appearing for the parties and scrutinized the material on record. 8. The material on record would clearly show that the application was filed by the assessee under Section 11B of the Act for refund of the excess amount of duty pai....