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2015 (9) TMI 1077 - CESTAT MUMBAI

2015 (9) TMI 1077 - CESTAT MUMBAI - TMI - Refund claim - deduction of expenses relating to carriage and freight in the assessable value - Held that:- Fact that the respondent was not paying duty on carriage and freight element while clearing individual consignment is not being disputed. In fact they started filing the price list only after the Hon’ble Bombay High Court directed to pay the duty on the carriage and freight element and on cardboard box packaging and interest on distributors advance .....

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fore, dismiss the appeal of the Revenue on this count. - In view of the decision of the Larger Bench [2013 (9) TMI 652 - CESTAT AHMEDABAD], the doctrine of unjust enrichment will not be applicable in the facts and circumstances of the present case. - Decided against Revenue. - APPEAL No. E/993/05-Mum - ORDER NO.A/2064/15/EB - Dated:- 8-7-2015 - Mr. P.K. Jain, Member (Technical) and Mr. S.S. Garg, Member (Judicial), JJ. For the Petitioner : Shri V.K. Shastri, Assistant Commissioner (AR) For the R .....

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e assessable value. The Hon ble Supreme Court in the said order relating to carriage and freight has observed as under:- To decide that question evidence on question, of fact would be necessary. It is therefore, appropriate that we remit the matter to the Assistant Commissioner (Central Excise), Worli. Bombay to determine the question of liability of excise duty, after taking into consideration the claimed deduction under the aforesaid head on the basis of the evidence to be produced before him. .....

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Commissioner of Central Excise, Worli, Mumbai passed order dated 28.5.2003. Against the said order, the Revenue filed appeal before the Commissioner (Appeals) who, after going through the said order, found the order passed by the Deputy Commissioner is incorrect and dismissed the appeal of the Revenue. Against the said order, the Revenue has come in appeal. 3. There are two issues raised in the grounds of appeal. The first issue is that the amount has been sanctioned without the necessary docum .....

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passed the order without the necessary documents being submitted by the respondent. Learned counsel for the respondent submits that even after the passing of the interim order by the Hon ble Bombay High Court, though they were filing the price list but they were not paying duty on the carriage and freight element. Further, the respondent filed appeal to the Hon ble Supreme Court against the said order of the Hon ble Bombay High Court and it is on the direction of the Hon ble Supreme Court that .....

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he learned counsel further submitted that undoubtedly the refund is for the period from 1984 to 1989 and the assessments were provisional.The said assessments have been finalized only after the said order of the Hon ble Supreme Court. He further submitted that whether the doctrine of unjust enrichment would be applicable to the cases which pertain to the period prior to amendment in Section 11B, but processed after the said amendment had come up before the Larger Bench of this Tribunal in the ca .....

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ssions. As far as the first issue is concerned, the fact that the respondent was not paying duty on carriage and freight element while clearing individual consignment is not being disputed. In fact they started filing the price list only after the Hon ble Bombay High Court directed to pay the duty on the carriage and freight element and on cardboard box packaging and interest on distributors advances. They did not agree and filed appeal to the Hon ble Supreme Court. It is on the direction of the .....

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of unjust enrichment. It is not disputed that the goods were cleared on provisional assessment basis and the provisional assessments have been finalized in 2002. We further find that the Larger Bench in the case of Panasonic Battery India Co. Ltd. (supra) has observed as under:- 8. After analyzing the law laid down by Supreme Court in the case of CCE, Mumbai-II v. Allied Photographics Ltd. [2004 (166) E.L.T. 3 (S.C.)], Hon ble High Court in para 18 of the order in the case of Commissioner of Cu .....

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and finalization of provisional assessment under Rule 9B of the Central Excise Rules, 1944 is independent from the provision of refund under Section 11B of the Central Excise Act, 1944. Even under the amendment made by Notification No. 45/99-C.E. (N.T.), dated 25-6-1999 only the procedure established under sub-section (2) of Section 11B of Central Excise Act, 1944 has been made applicable to the refunds arising out of finalization of provisional assessments under Rule 9B of the Central Excise Ru .....

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