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2016 (9) TMI 1019

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..... al Excise Rules 1944 then the provisions of Section 11B are not applicable to such cases when the assessments are finalized. He further submitted that this issue is no more res integra and relied upon the judgment of the Hon’ble Supreme Court of India in the case of CCE vs. Mafatlal Industries Ltd. [1996 (12) TMI 50 - SUPREME COURT OF INDIA]. Therefore, in view of the same, the impugned order is set aside. - Decided in favour of appellant with consequential relief - E/1765/2010-SM - Final Order No. 20714 / 2016 - Dated:- 1-9-2016 - Shri S. S. Garg, Judicial Member Shri B.V Kumar, Advocate For the Appellant Shri Pakshi Rajan, AR For the Respondent ORDER Per S. S. Garg The present appeal is directed against the Orde .....

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..... verification of the aforesaid refund claims it was observed that the appellants have collected the duty amount from the customers and have not submitted proper documentary evidence to prove that they have not passed on the incidence of duty to the customers. Thereafter three show-cause notices were issued to the appellant directing them to show-cause as to why the said refund claims should not be rejected as the clause of unjust enrichment would be attracted if refund is sanctioned. The appellant filed the reply to the show-cause notice and they have stated in their reply that their sale price is first fixed on deriving the provisional assessable value based on the previous quarter s admissible deductions. The final assessable value is arr .....

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..... Drum Barrel Mfg. Co. 2006 (199) ELT 590. In the present case it is not disputed that all the three refund claims have arisen due to finalization of provisional assessment during the period from April 1998 to December 1998. The learned counsel for the appellant submitted that when the assessments are provisional and such assessments are finalized in terms of Rule 9B of Central Excise Rules 1944 then the provisions of Section 11B are not applicable to such cases when the assessments are finalized. He further submitted that this issue is no more res integra. He relied upon the judgment of the Hon ble Supreme Court of India in the case of CCE vs. Mafatlal Industries Ltd. 1997 (89) E.L.T. 247 wherein in para 95 the Court has observed as under .....

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..... logically that position would be the same in the converse situation. 3.1. The same view was reiterated by the Hon ble Supreme Court in the case of CCE, Mumbai II Vs. Allied Photographics India Ltd. reported in 2004 (166) E.L.T. 3 (S.C). In addition to the above cited decisions, the appellants also relied upon the following decisions: (i) CCE ST Vadodara-II Vs. Panasonic Battery India Ltd. 2014 (303) E.L.T. 231 (Tri.-LB) (ii) Hindustan Zinc Ltd. Vs. CCE, Jaipur 2015-TIOL-2427-CESTAT-DEL (iii) CCE, Chennai Vs. T.V.S. Suzuki Ltd. 2003 (156) E.L.T. 161 (S.C) 4. On the other hand the learned AR reiterated the findings of the Commissioner. 5. After hearing the submissions of both the parties and after going through the .....

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