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CCE, Jaipur-II Versus M/s. Banswara Syntex Ltd.

2016 (5) TMI 1242 - CESTAT NEW DELHI

Denial of refund - Unjust enrichment - Held that:- 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. [2015 (11) TMI 953 - C .....

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i 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 provisional assessment. The assessments were finalized by an order dated 31.12.2002 along with a corrigendum dated 25.02.2003. .....

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e adjusted the excess duty against the excess availment of credit. Consequently, the respondent filed refund claim for ₹ 12,59,735/-, which was rejected vide order dated 8.12.2006 on the ground that the respondent could not prove with evidence that the burden of duty was borne by them only. On appeal, the Commissioner (Appeals) vide his order dated 2.2.2007 allowed the appeal on the ground that the Original Authority is bound by earlier appellate order which has reached the finality. He he .....

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urden 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, t .....

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rinciples, they are entitled for refund. On merit, he submitted that they have borne the burden of excess payment of ₹ 12,59,735/-. The adjustment of excess duty payment against short payment is legally permissible and question of unjust enrichment does not arise in such a situation. Even otherwise, their buyers have raised the debit notes and adjusted the amount already paid by them. They have relied on the decision of the Tribunal in the case of Hindustan Zinc Ltd. - 2015-TIOL-2427 (CEST .....

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