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2016 (9) TMI 841 - CESTAT HYDERABAD

2016 (9) TMI 841 - CESTAT HYDERABAD - TMI - Refund claim - unjust enrichment - cement was cleared at 12% instead of 8% on 7th and 8th December, 2008 - Rate of duty on cement was reduced from 12% to 8% of RSP w.e.f 07-12-2008 - Held that:- when the Chartered Accountants certificate has certified that the cement was dispatched to depots and not to end customer and that the depots are neither registered under Central Excise Act nor have issued any Central Excise invoices, unless the department has .....

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Sulekha Beevi, C.S., Member(Judicial) And Mr. Madhu Mohan Damodhar, Member(Technical) Shri J.S.Bhanumurthy, Advocate for the Appellant Shri Arun Kumar, AR for the Respondent ORDER [ Order Per Sulekha Beevi, C.S. ] 1. Brief facts of the case as put forth by the appellant are that the appellant is engaged in manufacture of cement and cement clinker. Appellant clears cement in bulk in containers as well in 50Kgs bags. Rate of duty on cement was reduced from12% to 8% of RSP w.e.f 07-12-2008. However .....

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the duty claimed as refund has not been passed on to the buyer. However, vide order-in-original dated 01-03-2010 the refund was rejected on the ground that the appellant was unable to prove that the duty has not been passed on to the buyer. Appeal filed before the Commissioner (Appeals) was dismissed vide Order in Appeal dated 21-10-2010. Hence this appeal. 2. On behalf of the appellant, learned counsel Shri J.S.Bhanumurthy made the following submissions. 2.1 The appellant is required to pay dut .....

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or value, unjust enrichment would not apply. 2.5 Where the goods are cleared to depot for further sale adopting higher value, and the said goods are sold at lesser values (after giving discounts), the question of unjust enrichment would not arise. 2.6 Duty on the cement bags cleared to depots was commuted and paid on RSP. However, the rate charged to the customers was much less than that of RSP. 2.7 The appellant produced certificate from Chartered Accountant to the effect that there is no unjus .....

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