TMI Blog2015 (11) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. Thus, in my view, the amount of refund, instead of crediting to the consumer welfare fund, be allowed to the appellant as refund. There is no prohibition/restriction in section 11B of the Act that credit note cannot be issued at a later date than the date of supply of the goods. In absence of any prohibition in the statute, denial of refund benefit to the appellant is contrary to the statutory mandates. - incidence of excess paid Central Excise duty has not been passed on by the appellant to its buyer, and thus, the doctrine of unjust enrichment is not applicable, for denying the benefit of refund. Therefore, the impugned order is set aside - Decided in favour of assessee. - Excise Appeal No.E/51417/2014 EX. [SM] - Final ORDER NO. 530 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... note/ debit note in section 11B of the Central Excise Act and thus, the doctrine of unjust enrichment shall be applicable for refund of the duty amount; that issuance of credit note with regard to the differential amount of duty at a later date after clearance of goods from the factory will not be available as refund to the appellant; that since the appellant has not applied for provisional assessment under Rule 7 of the Central Excise Rules, the refund is not admissible on the ground that provisional assessed price and finalisation thereof has no concurrence of the competent officer. Being aggrieved with the said impugned order, the appellant has preferred this appeal before the Tribunal. 2. Shri Vineet Kumar Singh, the ld. Advocate ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is an admitted fact that the appellant had paid higher Central Excise duty on the goods supplied to M/s. MBBNL due to non-finalization of the price. Since finalization of lesser price towards the supply of goods was settled at later date, the excess Central Excise duty paid by the appellant was claimed as refund in terms of Section 11B of the Central Excise Act, 1944. The said claim though was allowed by the original authority, but the Commissioner (Appeals) has denied the refund benefit on the ground that the appellant did not produce any evidence to show that the incidence of excess Central Excise Duty has not been passed on to the consumer or any other person. Section 11B read with section 11BB of the Act cast the responsibility on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excess duty, the Honble Andhra Pradesh High Court in the case of AP Paper Mills Ltd. vs. CCE, Vishakhapatnam, reported in 2014 (306) ELT 344 (AP) has held that refund claim filed under Section 11B of the Act has no application to the provisions contained in section 11C and accordingly, it was held by the Hon ble High Court that Sangam Processors case (Supra) has no applicability with regard to the refund claim filed under section 11B of the Act. 6. In view of the facts and in the circumstances of the case, I am of the considered opinion that the incidence of excess paid Central Excise duty has not been passed on by the appellant to its buyer, and thus, the doctrine of unjust enrichment is not applicable, for denying the benefit of refu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
