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2016 (9) TMI 624 - CESTAT NEW DELHI

2016 (9) TMI 624 - CESTAT NEW DELHI - 2016 (342) E.L.T. 424 (Tri. - Del.) - Period of limitation - Refund claim - payment of differential duty on re-valuation - 10%/15% of the cost of production whether required to be added to arrive at the assessable value or not - unjust enrichment - goods not sold to any person - Held that:- once it was finally settled by a quasi-judicial process in the appellant's own case that the assessable value of the impugned goods was to be arrived at by adding 10%/15% .....

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espondent: Mr. R.K. Grover, D.R. ORDER Appeal has been filed against Order in Appeal dated 21.08.2007 in terms of which the Commissioner (Appeals) (while deciding the assessee s appeal against Order- in- Original dated 18.05.2007 rejecting the appellants refund claim of ₹ 1,24,88,119/-) essentially held that the Original Adjudicating Authority rejected the refund claim on 3 grounds:- i) That the assessable value was to be determined at 110% /115% of the cost of production. (Refund was clai .....

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its appeal has contented that 10% / 15% of the cost of production was not required to be added as the goods were not sold to any other person, and therefore, the duty paid on this component was refundable. Further it is not a case of unjust enrichment as the goods were not sold. Also as the duty was paid under protest, question of time-bar does not arise. 4. In its memorandum of cross objection, the Revenue inter alia pointed out that: (i) the appellant has filed the refund claim while being fu .....

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got waived the penalty imposed upon them on the plea that they have already paid differential duty on this count and started paying duty of excise by taking 110% or 115% of the cost of production. Thus, the issue involved in the subject refund claim has already attained finality in January, 2004 and that filing of such refund claim is not proper, bad in law and liable for rejection. (ii) The principle of unjust enrichment is duly invocable in this case as the appellant passed on the burden to it .....

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