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TMI Blog2017 (3) TMI 1097X X X X Extracts X X X X X X X X Extracts X X X X ..... der This appeal is directed against the Order-in- Appeal No.P-I/156/2006 dated 27-4-2006 passed by the Commissioner (Appeals), whereby the Ld. Commissioner (Appeals) allowed the revenue's appeal. The facts of the case are that the appellant has opted for provisional assessment of their final products sold thru their depots/consignment agents, consumed captively for the manufacture of other final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, whereas the appellant should have filed refund claim which will be subject to test of unjust enrichment, hence without verifying the aspect of unjust enrichment in respect of excess paid duty the same could not have been adjusted therefore a demand of Rs. 19,74,066/-was issued. The adjudicating authority after examining the various relevant provisions such as Rules 9B(5) of Central Excise Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect that there is no demand arising out of final assessment order of the provisional assessment. The final assessment order itself is appealable and without challenging the final assessment order the proposal of demand by issuing show cause notice is premature, hence not sustainable. He further submits that the adjudicating authority has rightly contended that since the amount of excess paid duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e failed to establish that the excess paid duty was not passed on to any other person, the duty so paid in excess is not refundable to the assessee and consequently the said amount can not be allowed to be adjusted against any short payment of duty. Hence the duty demand confirmed in the impugned order is in order. 4. I have carefully considered the submissions made by both the sides and perused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgments in the case of Collector Vs. M/s. Flock India Pvt. Ltd. [2000(120) E.LT. 0285(SC)] and and Priya Blue Ltd. Vs. CC [2004(172) E.L.T. 145 (S.C.)]. that without challenging appealable assessment order, the demand or refund does not arise from such assessment order. As per my above discussion which is based on above referred Apex Court judgments, the impugned order is not sustainable. The impu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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