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Commissioner of Central Excise, Belapur Versus Bharat Bijlee Ltd.

2016 (9) TMI 32 - CESTAT MUMBAI

Refund claim - duty paid on differential value - supply of electrical transformers and accessories at contracted price containing a price variation formula - price reduced subsequent to the clearance of goods - Held that:- by following the various decisions of Supreme Court and Tribunal the respondents are not entitled to refund. Since the respondents are not entitled to refund the duty paid on differential value calculated by revising the assessable value, hence the question of unjust enrichmen .....

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A formula and penalty on account of delay in delivery. As a result, the appellant sought to revise the assessable value and sought refund of duty paid by them on the differential value. M/s.Bharat Bijlee Ltd. had not done provisional assessment in the case. They initially raised invoice for the full value, however, later on a credit note was issued. They however received only the net amount after adjustment of the price variation. Earlier in their own case, the Tribunal vide order No.A/479/2009/ .....

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t to the clearance of the goods and the assessment is not provisional. He relied on the decision of the Hon ble Supreme Court in the case of MRF Ltd. - 1997 (92) ELT 309 (SC). He also relied on the decision of Mauria Udyog Ltd. - 2007 (207) ELT 31. He argued that in the case of Mauria Udyog Ltd. (supra) the Hon ble High Court of Punjab & Haryana held that unless the assessment is provisional a post clearance reduction in price cannot be pass on for grant of refund. The said decision of Hon b .....

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ounsel for the respondent argued that the case is squarely covered by the Tribunal s decision in identical circumstances in their own case as reported in 2010 (262) ELT 369. She also argued that the appeal filed by the Revenue against the order of the Tribunal in their own case has been dismissed by the Hon ble High Court. She argued that since their case is squarely covered by the Tribunal decision in their own case and since the appeal against the said decision has been dismissed by the Hon bl .....

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n the said order. The revenue s appeal against the said order has been dismissed on account of limitation. I find that the appeal in the instant case has been filed on the ground of merit as well as unjust enrichment. The Revenue has relied on the decision of MRF Ltd. - 1997 (92) ELT 309 (SC), ECE Industries Ltd. - 2011 (274) ELT 100 (Tri-Del) and Mauria Udyog Ltd. - 2007 (207) ELT 31. {which was affirmed by the Hon ble Apex Court as reported in 2008 (221) ELT A120 (SC)}. In the case of ECE Indu .....

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e invoices at the time of clearance of the goods and accordingly the duty was paid factually the appellants received less amount consequent to the variation of the price on the strength of price variation clause in the agreement between the assessee and the supplier and, therefore, less duty was payable and hence the differential amount in the duty paid and payable is required to be refunded to the appellants. 13. The appellants have not pointed out any specific provision which would entitle the .....

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be accompanied by such documentary or other evidence including the documents referred to in Section 12A as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from or paid by him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person. The first proviso thereto provides that where an application for refund has been .....

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However, there is one important expression used in the said provision and that is relating to the period within which such application is made and that is very relevant for deciding the matter in hand. The provision under Section 11B specifically provide that refund should be claimed within one year from the relevant date . The expression relevant date has been defined under clause (b) of sub-section 5 of Section 11B. Sub-clause (eb) of Section B provides that the relevant date means, in case wh .....

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relation to the specify matters under Section 11(5)(b) of the said Act and one of such occasion can be when the duty was provisionally paid and on account of financial assessment, it is revealed that there was excess payment of duty at the time of provisional payment of duty apart from the said provision none of the other provision disclose a situation which could cover the factual matrix of the case in hand. There is no provision under the Act where it is provided that inpite of payment of dut .....

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