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2015 (12) TMI 1346 - CESTAT MUMBAI

2015 (12) TMI 1346 - CESTAT MUMBAI - TMI - Denial of refund claim - Excess tax paid - duty was paid on higher price - unjust enrichment -Held that:- Agreement entered by the appellant with Karnataka Antibiotics & Pharmaceuticals Ltd. indicates that the appellant is required to discharge duty liability on the products on the agreed rates including all taxes and duties would mean that the assessable value needs to be worked back by the appellant for discharging the duty liability. Appellant has di .....

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to the rates which are to be considered for discharge of duty liability by the appellant. - appellant has been showing the amount for which refund is claimed, in the balance sheet under head loan and in advances. This also indicates that appellant has not expensed out the amounts which have been paid by them as excess Central Excise duty in this appeal. - impugned order are held as unsustainable and liable to be set aside - Decided in favour of assessee. - Appeal No.E/1038/10-Mum - Dated:- 30-1 .....

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Pharmaceuticals Ltd. (Government of India Enterprises) discharging the duty liability. Subsequently, it was noticed that they have discharged excess duty and was not in accordance with the contract entered by them with Karnataka Antibiotics & Pharmaceuticals Ltd.; appellant filed a refund claim for the amount of Excise duty paid by them in appropriate form. A show cause notice was issued to appellant directing to show that the burden of unjust enrichment has been passed by them. The adjudica .....

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ceuticals Ltd. indicating that they are eligible for the refund of amount paid excess by them; the adjudicating authority has gone beyond the show cause notice and rejected the refund claim on a different ground i.e. inter pretating the provisions of agreement, entered by appellant with Karnataka Antibiotics & Pharmaceuticals Ltd.; he would then draw my attention to the order passed by the first appellate authority and submit that the same findings are recorded by the first appellate authori .....

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Chartered Accountant certificate indicating that the amount is still shown as receivable from the department, he would submit that the issue is not covered by the judgment of the tribunal in case of Brindavan Tex Processors Pvt. Ltd. 2006 (196)ELT 61 (tri. Bang.) & Corning S.A. 2005 (192) ELT 355(Tri. Del.). 4. Learned departmental representative on the other hand submits that the appellant should have taken up all this point before the lower authorities. It is his submission that appellant .....

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nt has been paid correctly as Excise duty and they should have proceeded against Karnataka Antibiotics & Pharmaceuticals Ltd. for recovery of said amount. 5. Considered the submissions made at length by both sides and perused the records. 6. On perusal of records, I find that the issue involved in this case is regarding the amount excise duty paid by the appellant in the excess, not payable as per the agreement whether refund arises or otherwise. 7. Undisputed facts are that the appellant en .....

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my considered view, the lower authorities were in error in rejecting the refund claim filed by them to appellant for more than one reason. 8.1. Firstly, agreement entered by the appellant with Karnataka Antibiotics & Pharmaceuticals Ltd. indicates that the appellant is required to discharge duty liability on the products on the agreed rates including all taxes and duties would mean that the assessable value needs to be worked back by the appellant for discharging the duty liability. Appella .....

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icular as to the rates which are to be considered for discharge of duty liability by the appellant. 8.2. Secondly, appellant have before the adjudicating authority produced a Chartered Accountant certificate dated 25/06/2008, which reads as under. It can be seen from the above reproduced Chartered Accountant certificate, he has come to conclusion that the appellant had not recovered the amount from Karnataka Antibiotics & Pharmaceuticals Ltd. I also find that on 28.03.2008, Karnataka Antibio .....

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