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2016 (12) TMI 839 - CESTAT NEW DELHI

2016 (12) TMI 839 - CESTAT NEW DELHI - TMI - Recovery of refund already made - unjust enrichment - Refund claim - unjust enrichment - finalization of provisional assessment - Held that: - It is fairly well settled that the test of unjust enrichment prescribed in Section 11B of the Central Excise Act, 1944, will be applicable only to the net adjusted duty arising as refund and not to the duty passed on in each invoice - the Commissioner (Appeals) have allowed the refund to be paid and in support .....

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ppellant to exchequer making the payment on provisional basis as per the provisional assessment order made by authority. In above terms the appellant is entitled for the refund of excess duty paid provisionally at the time of clearance of goods. - Refund allowed in cash - appeal dismissed - decided against Revenue. - Excise Appeal No. 2963 of 2012 - A/55750/2016-EX[DB] - Dated:- 8-12-2016 - Dr. Satish Chandra, President And Mr. V. Padmanabhan, Member (Technical) Sh. Yogesh Agarwal, AR for th .....

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tent of ₹ 14,43,333/-, for which they filed refund claim which was originally sanctioned. The department issued show cause notice for recovery of the refund amount by taking the view that the refund will not be payable in cash on account of the fact that the assessee has not passed the test of unjust enrichment, inasmuch as they have received payments from their customers as per revised rates. Accordingly, the original authority,vide his order dated 12.01.2012, recalled the refund claim. A .....

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isional assessment, the duty paid in excess is to be adjusted against the excise duty short paid by the assessee. After this adjustment, the final duty payable or refund eligible is to be arrived at. In the present case, this process has resulted in excess duty paid to the extent of ₹ 14,43,333/- which has become due to the assessee as refund. It is fairly well settled that the test of unjust enrichment prescribed in Section 11B of the Central Excise Act, 1944, will be applicable only to t .....

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sessment order and in case of reduction of price or negative price variation no excess amount of the time of provisional assessment was paid to the appellant and thus in fact the appellant have received the payment for the goods at the reduced rate. It has not been disputed by the department that in case of negative price variation the Central Excise duty reimbursement was not reduced. In this case on account of clause of purchase of goods from appellant on provisional basis and subject to revis .....

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