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2015 (11) TMI 449 - CESTAT NEW DELHI

2015 (11) TMI 449 - CESTAT NEW DELHI - TMI - Denial of refund claim - Unjust enrichment - Demand of differential duty - issuance of credit note/ debit note in section 11B - Held that:- Since the credit notes issued by the appellant to its buyer and in turn debit notes were also issued by the buyer to the appellant showing that the excess duty has been borne by the appellant as well as the benefit of duty amount has not been claimed by the buyer, the presumption of not passing on the duty inciden .....

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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. 53015/2015 - Dated:- 26-6-2015 - Mr. S.K. Mohanty, Member (Judicial) .....

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aid on the provisional price of goods was more than the finalization of price verification formula approved by Madhyanchal vidyut Vitran Nigam Ltd. (MVVNL). The refund application filed by the appellant was allowed by the Jurisdictional Assistant Commissioner, Central Excise vide order dated 02.07.2012. In the said order, it has been observed that after finalization of prices by MVVNL, the respondents issued credit notes for the principal amount and also for the differential duty. Hence, the doc .....

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chment 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. Bei .....

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suance of credit notes at a later date will not disentitle the appellant to its statutory right for claiming refund of duty. He further submits that all the documentary evidences, proving the fact of non-passing of duty incidence to the buyer of the goods having been produced by the appellant, the refund application cannot be denied on the ground of doctrine of unjust enrichment. To substantiate his above stand, the ld. Advocate for the appellant has relied various authoritative judgements of th .....

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the benefit of excess paid excise duty has not been passed on. 4. I have heard the learned Counsel for both sides and perused the records. 5. 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 Ex .....

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tisfied by the person, who claims for the refund of duty. Since the credit notes issued by the appellant to its buyer and in turn debit notes were also issued by the buyer to the appellant showing that the excess duty has been borne by the appellant as well as the benefit of duty amount has not been claimed by the buyer, the presumption of not passing on the duty incidence has been satisfied in the circumstances of the present case and as such the responsibility of proving that the incidence has .....

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