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2015 (10) TMI 1027 - CESTAT CHENNAI

2015 (10) TMI 1027 - CESTAT CHENNAI - TMI - Denial of refund claim - refund sanctioned after finalization of provisional assessment - Unjust enrichment - held that:- Discounts were given to the ultimate consumers before clearance. In identical issue, the Tribunal in the case of Tata Motors Vs. CCE, Pune (supra) has held that the discounts given before clearance, unjust enrichment clause will not be applicable - Division Bench of this Tribunal in the case of CCE, Andhra Pradesh Paper Mills (2006 .....

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refund and credited to the Consumer Welfare Fund is set aside - Decided in favour of assessee. - E/563/2007 - Dated:- 1-4-2015 - R Periasami, Member (T) For the Petitioner : Ms Radhika Chandrasekaran , Adv For the Respondent : Mr R Subramaniyan, AC (AR) ORDER Per R Periasami This appeal is arising out of the Order-in-Appeal No. 39/2007 dated 19.04.2007 passed by the Commissioner (Appeals). 2. The brief facts of the case are that consequent on the OIA No. 189/2003-CE dated 15.10.03, the provision .....

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eld the order of the adjudicating authority. 3. The Ld. Advocate for the appellant submits that they are engaged in the manufacture of watches falling under Chapter 99 on behalf of Titan Industries Ltd. They have been allowed various deductions by the principal manufacturer and they opted for provisional assessment. The department finalized the assessment for the year 1996-97 on 10.01.99, and while finalizing the assessment, Addl. Trade discounts cash discounts and performance incentives, season .....

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val of goods. In their own case, the Commissioner (Appeals) allowed their refund for assessment year 1995-96 vide order dated 187/1999 dated 01/09/99. The Revenue filed appeal before the Hon'ble Tribunal against the above order and the Hon'ble Tribunal dismissed the Revenue appeal vide Final Order No. 1103 & 1104/2000 dated 11.08.2000. The department preferred CMA before the Hon'ble High Court of Madras against the order of the Tribunal and the same was dismissed the Revenue appe .....

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lved in the present appeal is 1996-97 and the provisional assessment was finalized on 11.01.99. Whereas, Rule 9B(5) was amended only from 25.6.99 wherein the provisions of Section 11 B(2) was made applicable for provisional assessment. Since the period of provisional assessment is prior to 25.6.99, unjust enrichment clause is not applicable in their case. 4. The Ld. AR reiterates the findings of the adjudicating authority and OIA. He further submits that unjust enrichment is applicable in their .....

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ons from both the sides. On perusal of the records I find that the short issue involved in this case relates to refund sanctioned after finalization of provisional assessment and credited to the customer welfare fund, whether the refund claim is hit by bar of unjust enrichment clause. There is no dispute on the merits that the admissibility of deductions of various discounts was decided by the Commissioner (Appeals) in the OIA 189/03 dated 15.10.03. The period involved in the present case relate .....

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e present case appellant manufacture watches on behalf of M/s. Titan Industries and these watches are sold to the ultimate consumers after allowing the discounts and these discounts are pre-determined and already known to the trade before removal of the goods. This fact was discussed by the Commissioner (Appeals) in their own case in the earlier order 189/03 dated 15.10.03. Para 6.3 is reproduced below:- "6.3 On going through the records and documents produced, it is evident that the Additi .....

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Apex Court since the SLP filed by the Revenue was 'dismissed on merits' as reported in 1994 (73) ELT A58 (SC)." From the above order it is very clear that these discounts were given to the ultimate consumers before clearance. In identical issue, the Tribunal in the case of Tata Motors Vs. CCE, Pune (supra) has held that the discounts given before clearance, unjust enrichment clause will not be applicable. Relevant portion of the order is reproduced as under:- "In this case, the .....

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onent in the discount has not been passed on the dealers as the amount of discount has been credited in the account of dealers. Similar situation came up before the Hon'ble High Court of Madras in the case of Addision & Co. wherein the Hon'ble High Court held that where the entitlement discount has already known to the buyers, in that case if discount is given by way of credit note, the bar of unjust enrichment is not applicable but the said decision has been challenged before the Ho .....

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