TMI Blog2016 (5) TMI 1242X X X X Extracts X X X X X X X X Extracts X X X X ..... ,LTU, Bangalore [2011 (10) TMI 201 - KARNATAKA HIGH COURT]. Considering the ratio followed by the Tribunal, no merit found in the present appeal filed by revenue. - Decided against the revenue - Excise Appeal No.E/1114/2007-EX(SM) - Final Order No.51851/2016 - Dated:- 23-5-2016 - SHRI B. RAVICHANDRAN, MEMBER (TECHNICAL) For the Petitioner : Shri G.R. Singh, DR For the Respondent : Ms. Neha Meena, Advocate ORDER PER B. RAVICHANDRAN: The appeal by Revenue is against order dated 2.2.2007 of Commissioner (Appeals)-II, Jaipur. The respondent are engaged in the processing of textile fabrics on job work basis. During the period March, 2001 to Feb. 2002, the respondents were paying central excise duty on the basis of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent raised invoice and collected the amount as per the invoice. They have not produced any evidence regarding the duty burden being borne by them only. Once duty burden is passed on to the buyers, the credit note issued later by the buyer, cannot be considered to decide the question of unjust enrichment. 3. During the course of argument, ld. AR for the appellant reiterated the grounds of appeal and submitted that the Commissioner (Appeals) has erred in directing the refund to be paid after adjusting the excess payment of duty against excess availment of deemed credit. Even in the case of provisional assessment, the duty paid has to be verified to decide the question of unjust enrichment. The first order of the Commissioner (Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , a show cause notice was issued to the respondent to deny the refund on the ground of unjust enrichment. The Commissioner (Appeals) in the impugned order held that the Original Authority is bound to follow the earlier appellate order, which allowed the adjustment of excess with short payment during the finalization of provisional assessment. On this issue, the impugned order cannot be faulted as such adjustment of duty on finalization of provisional assessment is held to be legally valid by the Tribunal in Hindustan Zinc Ltd. (supra).The Tribunal followed the decision of the Hon ble Karnataka High Court in the case of Toyota Kirloskar Auto Parts Pvt. Ltd. Vs. CCE,LTU, Bangalore - 2012-TIOL-10-HC-KAR-CX. Considering the ratio followed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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