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2016 (5) TMI 1118 - CESTAT MUMBAI

2016 (5) TMI 1118 - CESTAT MUMBAI - TMI - Refund claim - excess duty paid - procedure of provisional assessment not followed - Unjust enrichment - Held that:- the appellant admittedly filed the refund claim within one year. It is also not in dispute that the goods were supplied to the appellant's own unit, therefore the valuation provision of Rule 8 of the Central Excise Valuation Rules, 2000 applies. According to which, the price at the time of clearance of the goods is always provisional price .....

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s 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 that the assessee was under bonafide belief that their stand that s .....

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excess duty paid has not been passed to any other person. - Appeal disposed of by way of remand - Appeal No. E/159/2011 - A/86090/16/SMB - Dated:- 9-2-2016 - SHRI RAMESH NAIR, MEMBER (JUDICIAL) For the Petitioner : Shri Sushant Murthy, Advocate For the Respondent : Shri N.N. Prabhu Desai, Supdt. (A.R) ORDER This appeal is directed against the Order-in-Appeal No. PKS/355/BEL/2010 dated 19th October, 2010 passed by the Commissioner of Central Excise (Appeals) Mumbai-III. 2. The fact of the case i .....

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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 .....

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ding to which, the final value can be arrived at only on the basis of CAS4 which normally cannot be ascertained at the time of clearance of the goods. If the procedure of provisional assessment is followed the only benefit to the assessee is that limitation provided under Section 11B does not come in the way for claiming the refund. In the present case, the refund claim was filed within one year. Therefore, even though the provisional assessment was not followed, the refund of duty paid in exces .....

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t procedure was followed the refund cannot be denied. As regard unjust enrichment he submits that the Ld. Commissioner (Appeals) decided the 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 rem .....

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en one opportunity before the adjudicating authority for submitting the necessary documents and evidences to establish that the incidence of duty for which refund is sought for, has not been passed on to any other person. 4. On the other hand, Shri N.N. Prabhudesai, Learned Supdt. (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order and submits that it is a mandatory provision to follow the provisional assessment and if the provisional assessment is not followe .....

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wever, this issue has been settled in the case of Century Enka Ltd. (supra). According to which, merely by not taking the Cenvat Credit by the recipient of the goods it cannot be established that the incidence of duty has not been passed on. He relied upon the following judgments: (i) Century Enka Ltd. Vs. Commissioner of C. Ex., Pune-2006 (206) E.L.T. 663 (Tri.-Mumbai) (ii) Maharashtra Cylinders Pvt. Ltd. Vs. CESTAT, Mumbai-2010 (259) E.L.T.369 (Bom.) (iii) Commissioner of C.Ex. Chennai Vs. E.I .....

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ommr. of Central Excise, Pune-I-2010 (259) E.L.T. 742 (Tri.-Mumbai) (ix) Munjal Auto Industries Vs. Commissioner of C. Ex. & S.T. Vadodara-2014 (307) E.L.T. 577 (Tri.Ahmd.) (x) Commissioner of Central Excise, Raipur Vs. Blastech (India) Pvt. Ltd.-2011 (274) E.L.T. 210 (Tri.Del.) (xi) Sanat Products Ltd. Vs. Commissioner of Central Excise-2015 (323) E.L.T. 682 (All.) (xii) Western Coalfields Ltd. Vs. CESTAT, New Delhi-2013 (288) E.L.T. 203 (Bom.) (xiii) Harinagar Sugar Mills Ltd. Vs. Commissi .....

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refund. However, in the present case, the appellant admittedly filed the refund claim within one year. It is also not in dispute that the goods were supplied to the appellants own unit, therefore the valuation provision of Rule 8 of the Central Excise Valuation Rules, 2000 applies. According to which, the price at the time of clearance of the goods is always provisional price. The final price can be ascertained only on the basis of CAS4, which can be prepared only after completion of the finan .....

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e 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 the case of Premier Explosives Ltd. it was held as under: 9. On a very careful consideration of the issue, we find that in terms of the agreement between the respondents and .....

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ven if the assessment is final, one has to examine the refund claim. It is reiterated that the question of the assessment being final or provisional is not relevant to a case where the refund claim has been filed within the time limit. All the case laws cited by the learned Advocate are very relevant. When there is price variation clause in the agreement when the price increases the respondent normally discharges the differential duty due to the government. The same treatment has to be meted out .....

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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 o .....

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