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NRC Ltd. Versus Commissioner of Central Excise, Thane-I

2016 (8) TMI 235 - CESTAT MUMBAI

Rejection of refund claim on the ground of unjust enrichment - Recovery of erroneous refund – Valuation - allowing quantitative discount - evidence found from the records that incidence of duty on the discount amount has not been passed. Lower authority mentioned in the order that the appellant has not produced all the credit notes – Held that:– matter remanded to adjudication authority for fresh decision on production of relevant documents . Both the appeals remanded back. Adjudicating authorit .....

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Commissioner upholding the Order-in-Original No. 117/07-08 dt. 10.3.2008 & 01/RN/TH-I/2008 dt. 21.11.2008, rejected the appeal filed by the appellant. Appeal No. E/725/2011-Mum is on the issue of rejection of refund claim on the ground of unjust enrichment and Appeal No. E/724/2011-Mum is on the issue of recovery of the erroneous refund of the same amount. 2. The fact of the case is that the appellant manufactured and sold the goods to their wholesale buyers under Quantity Rebate Scheme an .....

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djudicating authority, however retained the amount with the department, on the ground that the appellant could not produce any evidence that the buyer of the goods have reversed the modvat credit. The appellant aggrieved by the various Orders-in-Original filed appeal before the Commissioner (Appeals), Meanwhile, the appellant also filed Writ Petition before the Honble High Court, the High Court ordered that if the Cenvat Credit were not reversed the said amount should be added back to the asses .....

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Commissioner (Appeals) vide OIA No. BR/137/Th-I/05 dt.1/7/2005 who rejected the departments appeal on the ground that the plea of unjust enrichment were not taken by the department at any time and the said point was also not raised in the show cause notice and also not dealt in the Order-in-Original by the adjudicating authority, and department cannot go beyond the scope of show cause notice. The said Order-in-Appeal was challenged by the Revenue before the Tribunal the Tribunal remanded the ma .....

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pellant submits that the refund was rejected only on the ground of unjust enrichment. She submits that there is no dispute in respect of quantity discount. The appellant have subsequently issued credit note not only for the discount amount but also for the duty attributed and paid on the said discount. On the basis of this credit note the amount of discount and duty thereof has been credited to the buyer, therefore incidence of duty for which the refund was sought for has not been passed on init .....

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has not been passed on to any other person. On the basis of this fact, it is clear that the claim is not hit by unjust enrichment. She placed reliance on the following judgments: (i) Triveni Glass Ltd. Vs. Commissioner of Central Excise, Allahabad-2003 (162) E.L.T. 529 (Tri.-Del.) Upheld by SC-2015-(320)ELT A-338(SC) (ii) Sunrays Engineers Pvt. Ltd. Vs. Commissioner of C.Ex.Jaipur-2015 (318) E.L.T. 583 (S.C.) (iii) Commissioner of Central Excise, Pune-I Vs. Sandvik Asia Ltd.-2015 (323) E.L.T. 43 .....

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re submitted, therefore the appellant could not establish that the incidence of refund amount has not been passed on to any other person. He placed reliance on the following judgments: (i) M/s. Fenner India Ltd. Vs. CESTAT -2015-TIOL-2203-HC-MAD-CX (ii) M/s. Fenner India Ltd. Vs. CESTAT, Chennai-2014 (305) E.L.T.524 (Mad.) (iii) M/s. Videocon International Ltd. Vs. CCE-2014-TIOL-50-CESTAT-MUM (iv) Grasim Industries Ltd. Vs. CCE-2011 (271) E.L.T. 164(S.C.) 5. I have carefully considered the submi .....

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