TMI Blog2016 (5) TMI 1118X X X X Extracts X X X X X X X X Extracts X X X X ..... overheads, till that time whatever price on which the clearances are made is on estimation basis. In this process, if there is any shortfall in the duty, the same is required to be paid on finalization of valuation on the basis of CAS4. Similarly, if there is an excess payment over and above the final price on the basis of CAS4, the same shall be refunded to the appellant. I am therefore of the view that merely because the appellant have not followed the procedure of provisional assessment, the price at which the duty was paid at the time of clearance cannot be treated as final assessment. Therefore, for this reason refund of excess paid duty cannot be denied by relying on the various judgments. As regards unjust enrichment, it is found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... short fall of the duty, they have paid the differential duty. During the period April 2009 to June 2009 the excise duty paid at the time of clearance of the goods was in excess to the actual duty payable as per CAS4. Hence the appellant applied for the refund of excess paid duty. The refund claim was rejected by the adjudicating authority on two counts. First on the ground that the appellant have not followed the procedure of a provisional assessment and second they have not proved the aspect on unjust enrichment. On the appeal filed by the appellant before the Commissioner (Appeal), the appeal was rejected upholding both the grounds. Therefore the appellant is before me. 3. Shri Sushant Murthy, Ld. Counsel for the appellant submits tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he issue of unjust enrichment on the basis of Tribunal judgment in the case of Century Enka Ltd. Vs. Commissioner of C. Ex. Pune 2006 (206) E.L.T. 663 (Tri.-Mumbai) wherein it was held that merely because Cenvat Credit has not been taken by sister unit does not mean that incidence of duty has not been passed on. However, in the same judgment the matter was remanded to verify the said fact on the basis of document whether the incidence of duty was passed on or otherwise. In the present case also the lower authority gone into the records by which it can be ascertained whether the incidence of duty has been passed on or otherwise. The appellant under a bona fide belief taken a stand that their sister unit who received the goods have not taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Maharashtra Cylinders Pvt. Ltd. Vs. CESTAT, Mumbai-2010 (259) E.L.T.369 (Bom.) (iii) Commissioner of C.Ex. Chennai Vs. E.I.D. Parry India Ltd.-2006 (4) S.T.R. 585 (Tri.-Chennai) (iv)KEC International Ltd. Vs. Commissioner of Central Excise, Jaipur-2006 (4) S.T.R. 473 (Tri. -Del.) (v) Commissioner of C.Ex. Cus., Nashik Vs. Raymond Ltd.-2015 (316) 129 (Tri.-Mumbai) (vi) Hindustan Petroleum Corporation Ltd. Vs. Commr. of C. Ex., Mumbai-II-2015 (317) E.L.T. 379 (Tri. Mumbai) (vii) Commissioner of Central Excise, Bhopal Vs. Tesla Transformers Ltd.-2013 (293) E.L.T. 252 (Tri.-Del.) (viii) Keihin Fie Pvt. Ltd. Vs. Commr. of Central Excise, Pune-I-2010 (259) E.L.T. 742 (Tri.-Mumbai) (ix) Munjal Auto Industries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that time whatever price on which the clearances are made is on estimation basis. In this process, if there is any shortfall in the duty, the same is required to be paid on finalization of valuation on the basis of CAS4. Similarly, if there is an excess payment over and above the final price on the basis of CAS4, the same shall be refunded to the appellant. I am therefore of the view that merely because the appellant have not followed the procedure of provisional assessment, the price at which the duty was paid at the time of clearance cannot be treated as final assessment. Therefore, for this reason refund of excess paid duty cannot be denied. The judgments relied upon by the Ld. Counsel directly apply to the facts of the present case. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue s appeal. The impugned order is legal and proper. Therefore, we dismiss the appeal of Revenue . In the case of Keltech Energies Ltd. it was held as under: 2. After hearing both sides and considering their submissions, I note that the appellant objects to the refund on the ground of unjust enrichment. It is submitted that, once the goods were cleared on payment of appropriate duty, refund of such duty cannot be claimed after issuing credit notes to the buyer. The lower appellate authority has relied on the Tribunals decision in Indian Aluminium Cables Ltd. v. Collector - 1997 (95) E.L.T. 386 (Tribunal), wherein it had been held that, if price was revised upwards or downwards in terms of price escalation clause in the contra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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