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2016 (8) TMI 235 - CESTAT MUMBAI

2016 (8) TMI 235 - CESTAT MUMBAI - 2016 (344) E.L.T. 552 (Tri. - 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 .....

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by the Commissioner (Appeals) Central Excise Mumbai Zone-I whereby the Ld. 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 .....

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pellant filed refund claim which in the first round was sanctioned by the adjudicating 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 .....

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dt. 23.3.2004, the Revenue filed appeal before the Commissioner (Appeals), 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 .....

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llant is before me. 3. Ms. Padmavati Patil Ld. Counsel appearing for the appellant 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 incide .....

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tant had also certified that the incidence of duty paid on discount amount 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) Commis .....

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well as the impugned order. It was observed that no documentary evidence were 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. V .....

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