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2016 (6) TMI 234 - CESTAT MUMBAI

2016 (6) TMI 234 - CESTAT MUMBAI - TMI - Rejection of refund claim on the grounds of unjust enrichment - payment of duty under protest on broken glass bottles - Held that:- In respect of all the invoices in which at the time of clearance the duty payment has been shown in the invoice, there is no doubt that the burden of duty has been passed on to the customers in such cases. The provisions of unjust enrichment have been rightly invoked in such cases. - In respect of first category mentioned .....

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d before the Commissioner (Appeals). Thus find that while the impugned order deals with the second situation, it is silent about the first situation. - In view of the above, upheld the impugned order so far as it relates to the clearances made on payment of duty. However, in respect of refund claim on the duty paid for the past clearances, the impugned order is set aside and the matter is remanded to the Commissioner (Appeals) for giving his findings on the issue. Further, since the Chartere .....

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t. The appellants are manufacturers of aerated drinks. They had cleared certain broken glass bottles and the same were disposed of by the appellants without payment of duty. Revenue objected to the same and as a result, the appellant paid ₹ 6,02,400/- for the period February 2000 to December 2001 for the past clearances under protest. Thereafter, the appellant started paying the duty on their clearances under protest regularly. The issue was decided on merits by CESTAT in the appellants f .....

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nt. He divided the refund claim into two categories. The first category being the category in respect of which they have paid the duty after clearances under protest and the second category being the category where the duty was paid at the time of clearances under protest. In respect of second category he argued that the price of goods at which the same was sold remains the same before they started paying the duty and after they started paying the duty. Therefore, the MRP of the goods remains th .....

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ower assessable value. It was only when the jurisdictional central excise authorities raised objection, they debited the lump sum amount of ₹ 37,532/- from their PLA as also RG-23 Part-II. It is also on record that no supplementary invoice was raised by them in respect of the said differential duty so paid. As such, it becomes clear that the said deposit of duty by the appellant was in respect of number of clearances made from the factory gate and the said amount was debited as a result of .....

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not hit by bar of unjust enrichment. We accordingly set aside the impugned order and allow the appeal with consequential relief to the appellant. He also argued that the Hon ble High Court of Bombay in its decision in the case of CCE, Pune Vs. Rocket Engg. Corporation Ltd., - 2014 (306) ELT 33 (Bom) had similar circumstances held in their favour. 3. The learned AR for the Revenue relies on the impugned order. 4. I have gone through the rival submissions. I find that the impugned order in para 15 .....

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djudicating authority has recorded a finding that the price mentioned in the commercial invoice represented the cum duty price which included the excise duty element of ₹ 0.25 per kg computed at the excise duty rate @ 16%. If this duty amount was reduced from the cum duty price, as provided under Section 4(3) of the Central Excise Act, the price of ₹ 1.81 per kg indicated in the commercial invoice would translate into a transaction value of ₹ 1.56 per kg which is the price show .....

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incidence of duty was passed on to the customer by the appellants vide through their Commercial invoices and not through the medium of the excise invoice. I find merit in the findings of the original adjudicating authority. The appellants has failed to explain why the price should be different in the Commercial and Excise Invoices. If the price in the Commercial invoices did not include the duty element as contended by the appellant then the price in the excise invoice should also have been the .....

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ng authority and disallow the appeal From the above, it is clear that the appellants, during the period when they started paying duty under protest, have recovered the duty from the clients at the rate at which they had paid to the Revenue. This has been done in such a manner that in the total price has remains the same. The invoice issued by the appellants were worked out in such a manner that while duty was recovered from the buyers the price of the goods remains more or less the same. However .....

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ce of duty has not been passed on to the buyer as such uniformity may be due to various factors. Hence, even on merits, the respondent has failed to make out a case for refund. Since relevant factors stated above have not been examined by the authorities below, we do not find merit in the contention of the respondent that this Court should not interfere under Article 136 of the Constitution in view of the concurrent finding of fact. 5. In some cases, the customers may be entitled to avail Cenvat .....

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