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2016 (2) TMI 214 - CESTAT NEW DELHI

2016 (2) TMI 214 - CESTAT NEW DELHI - TMI - Eligibility to get refund of excess duty - unjust enrichment - duty paid in cases where such excess duty collected from the buyers were restored to the buyers by way of credit notes - Held that:- In case of IBP Limited (2013 (10) TMI 263 - CESTAT NEW DELHI ) it was held that when initially goods have been supplied at a provisional price which subsequently had been reduced and when the higher price initially charged along with higher duty had been adjus .....

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sed on, the refund claim would no longer be hit by the principle of unjust enrichment. - Decided in favour of assessee. - Appeal No. E/1757-1762/2006-EX[DB] - Final Order No. 53030-53035/2015 - Dated:- 23-9-2015 - SMT. SULEKHA BEEVI C.S., MEMBER (JUDICIAL) AND SHRI B. RAVICHANDRAN, MEMBER (TECHNICAL) For the Petitioner : Shri Govind Dixit, DR For the Respondent : Sh Ajayan T.V., P.V. Sadavarte, L.P. Asthana, Amit, Kumar, CA ORDER Per: B. Ravichandran These are six appeals filed by Revenue agains .....

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e ground that the excess duty has been collected by the respondents from their respective buyers and hence, refund now will result in unjust enrichment. On appeals filed by the respondents, the Commissioner (Appeals) vide impugned orders set aside the original orders and held the respondents eligible for refund as such claims were not hit by the principle of unjust enrichment. Aggrieved by these orders, the Revenue is in appeal before us. In the grounds of appeal, it was contended that the learn .....

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ondents to overcome the bar of unjust enrichment. He reiterated that this Tribunal s decision in the case of Snagam Processor (Bhilwari) Ltd. (Supra) as affirmed by the Hon ble Supreme Court, should have been followed by the lower authority while considering the issue. On the other hand, learned counsels appearing on behalf of the respondents stated that the ratio of this Tribunal s decision in the case of Sangam Processors (Bhilwari) Ltd. is not applicable to the present case both on the ground .....

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missioner of C. Ex., Nagpur Vs. Solar Capitals Ltd. reported in 2006 (205) ELT 403 (Tri-Mumbai) 5. CCE-Bhopal Vs. Indian Explosives Limited reported in 2015 (315) ELT 606 (Tri.-Delhi). 6. Commissioner of Central Excise, Jaipur Vs. Universal Cylinders Limited reported in 2004 (175) ELT 202 Tribunal Delhi. 7. Commissioner of Central Excise, Raipur Vs. IBP Limited reported in 2013 (288) ELT 385 (Tri.-Delhi) 3. It was contended on behalf of the respondents that in their case assessments were provisi .....

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n the present cases, the only point for decision is whether or not the respondent eligible to get refund of excess duty paid in cases where such excess duty collected from the buyers were restored to the buyers by way of credit notes. The Revenue relied on this Tribunals decision in the case of Sangam Processors (Bhilwari) Ltd. (Supra), we find that in the said case, the Tribunal was dealing with the refund claim which arose after issue of notification under Section 11C of the Central Excise Ac .....

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leared under provisional assessment. The differential duty collected from the buyer by the respondents at the time of original clearances was restored back to the buyers by way of credit notes which was adjusted against the dues of the respondents. The set of facts in the present appeals are thus materially different from the case of Sangam Processors (Bhilwari) Ltd. Further, the Honble Rajasthan High Court in the case of A.K. Spintex Limited (Supra) held that the Revenues contention that issu .....

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apable of being construed as having reference to the ultimate consumer of the product. What has to be demonstrated by the claimant is that the burden of the duty paid had not been passed on by him to any other person. The passing on will occur only if the person who claims refund of duty as shifted the burden to another. There can be no passing on of the incidence of the duty if he merely reduces his burden by receiving the refund. The possibility that the dealer who has obtained goods from the .....

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