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TMI Blog2015 (10) TMI 966X X X X Extracts X X X X X X X X Extracts X X X X ..... d the goods under provisional assessment, which was finalized vide order-in-original No.01/01-02 dated 04/06/2001, and duty excess paid was determined at Rs. 91,59,977/-. Revenue being aggrieved by the order, they filed an appeal before the Commissioner (Appeals) on the ground that the assessee have incorrectly claimed deductions on the assessable value. The said appeal of the Revenue was allowed by the Commissioner (Appeals) vide order No.RJB/M-III/353/2003 dated 04/08/2003. Being aggrieved by the order, the assessee preferred an appeal before this Tribunal and this Tribunal vide final order dated 28/04/2004 allowed the appeal filed by the assessee and set aside the order-in-appeal dated 04/08/2003. The said order of the Tribunal has becom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee has submitted that the various trade discounts allowed by the company to its buyers in the replacement market have been passed on to the buyers even before the finalisation of the assessment and the credit notes for the same have been credited to the accounts of the dealers before finalisation of the assessment and therefore the bar of unjust enrichment do not apply to their case. The report of the Range Officer in this regard is already discussed in earlier paras. The Range Officer in her report had stated that the assessee has issued the credit notes and thereby there is no unjust enrichment. The Range Officer has also verified the statements for the year 98-99 showing the refund of excess duty paid from the Range records and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation of the Range Officers report judicial pronouncements discussed above, I hold that the assessee is entitled for the quantified refund claim filed by them due to finalisation of the provisional assessments for the year 98-99." 3. In the meantime, the Revenue issued a show-cause notice dated 04/07/2003, which was issued under 11A (1) of the Central Excise Act, 1944 on the ground. Further scrutiny of the case records, it appears that CEAT Ltd., was not entitled to the refund and the same could have been credited to Consumer Welfare Fund as laid down under the provisions of Section 11B (2) as the applicant, M/s.CEAT Ltd., had not produced any evidence to prove that they had not passed on the incidence of the duty to their customers duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noticed that ruling of Mafatlal Industries Ltd. case was followed by TVS Suzuki Ltd. case 2001 (135) ELT 140 (Tri-Chennai). The Revenue had filed civil appeal before the Honble Supreme Court in TVS Suzuki Ltd. case and had also issued Circular No.518/14/2000-CX dated 03/03/2000.It was further relied upon the decision of the Madras High Court in the case of CCE, Trichirapalli Vs Hajee A.M. Abdul Rahiman 2001 (133) ELT 23 (Mad) wherein it was held that Section 11B of the Central Excise Act, will not apply to the claim of refund in respect of provisional assessment concerned, for a period anterior to 25/06/99, by order dated 23/07/2001. Further it was noticed that the Honble Supreme Court decision in the case of Sinkhai Synthetics & Chemica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smissing the Revenues appeal placing reliance on the decision of the Apex Court in the case of Mafatlal Industries Ltd. passed during 1997, in respect of provisional assessment when a new clause (eb) to Explanation B in Section 11B of the Act was enact with effect from 01/08/2009 by virtue of which the refund on finalisation of the provisional assessment after 01/08/98 is governed by Section 11B of the Act and whether the Tribunal was right in dismissing the Revenues appeal on the ground that the amendment was made under Rule 9B (5) of the Rules, with effect from 25/06/99 particularly when legislative amendment was introduced under Section 11B of the Act from 01/08/1998 onwards by insertion of clause (eb) to explanation B in Section 11B of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned here that under Section 35E (2) Act, it is the jurisdiction of the Commissioner of Central Excise to Review any order passed by the sub-ordinate authority, if it is found prejudicial to interest of the Revenue. It is evident that there is no direction or the order of the Commissioner of Central Excise to issue such notice. The learned Counsel further states that in order-in-original granting refund dated 31/03/2003 the issue of unjust enrichment was considered in detail on merits, wherein a categorical finding that the assessee have issued credit notes for discounting and the same was the duty found accounted in the books of accounts and after considering report of the range officers on the facts, and CA certificate were considered. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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