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2016 (9) TMI 1019 - CESTAT BANGALORE

2016 (9) TMI 1019 - CESTAT BANGALORE - TMI - Refund claim - unjust enrichment - appellant applied for provisional assessment - 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 - Held that:- 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 .....

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, 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 Order-in-Appeal passed by the learned Commissioner (Appeals) vide his order dated 13.05.2010 vide which he allowed the appeal of the appellant and rejected .....

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7,327/- Oct. 98 to Dec. 98 The said refund claims were filed stating that they had applied for provisional assessment, vide their letter dated 4.6.1998. They have deducted the equalized sales tax, wholesale equalized freight, permissible discounts, discount for damages etc. on the basis of previous quarter s figures. On actualization of the same, they found that they have paid the central excise duty in excess. The refund claims were duly supported by Chartered Accountant s certificates. After d .....

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lant 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 arrived at based on the actuals of the quarter s admissible deductions. The difference between the provisional assessable value and the final assessable value is taken into consideration for determining whether a refund is due or a payment of differen .....

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rder-in-Original dated 29.12.2000 rejected the refund application and credited the refund amount to Consumer Welfare Fund in terms of Section 11B(2) of the Central Excise Act 1944. Aggrieved by the said order, the appellant filed appeal before the Commissioner (Appeals) which was disposed off vide Order-in-Appeal dated 25.09.2003. Hence the present appeal. 2. Heard both the parties and perused the records. 3. The issue involved in the present case is whether the doctrine of unjust enrichment wou .....

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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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if the duty provisionally assessed falls short of or is in excess of the duty finally assessed, the assessee shall pay the deficiency or be entitled to a refund, as the case may be . Any recoveries or refunds consequent upon the adjustment under sub-rule (5) of Rule 9B will not be governed by Section 11A or Section 11B, as the case may be. However, if the final orders passed under sub-rule (5) are appealed against - or questioned in a writ petition or suit, as the case may be, assuming that such .....

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