TaxTMI 
TaxTMI 
2017 (6) TMI 509
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....in the Provisional Assessment has to be sanctioned only after considering the principle of unjust enrichment and the (sic) Tribunal also in not considering the judgment of Bombay High Court in CCE, Mumbai-II Vs. Standard Drum & Barrel Mfg.Co. reported in 2006 (199) ELT 590 (Bom)? (iii) Whether the Tribunal was correct in deciding the case when the decision of two cases relied upon by it has not reached its finality which are appealed by the department in higher forum? 2. In order to adjudicate upon the questions of law framed, one would require to broadly notice the following facts, which have arisen in the case. 2.1. The 1st respondent herein, i.e., the Assessee, apparently, is in the business of manufacturing paper based decorative laminated boards, falling under TSH 3920.37 of the Central Excise Tariff Act, 1985 (in short, CETA). The Assessee, it appears, cleared goods from depots, located in Bangalore, Chennai and Delhi. The record shows that the goods, which were cleared by the Assessee from various depots were not evenly priced. In so far as some depots were concerned, the price was higher, as compared to the others. It was, on account of this reason, that the Assessee ha....
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....riginal dated 29.08.2007, whereby, a refund, in the sum of Rs. 1,71,691/- was sanctioned and, a sum of Rs. 2,22,338/- was directed to be paid by the Assessee. 2.8. As indicated herein above, these amounts were squared off. The operative direction issued, as alluded to above, was for payment of Rs. 50,647/- with interest, calculated on Rs. 2,22,338/-. 3. In the appeal, the Commissioner (Appeals), returned the following findings of fact: ".....It is apparent there from that the order for finalization of provisional assessment for the year 2000-01, 2001-02 and 2002-03 in C.No.V/17/39/2001-VI dated 30.12.2003 has been accepted by the Department and attained finality as otherwise there would have been a mention as such of such a fact. It was determined there under as related in the impugned order that Rs. 222338/- has to be paid by the appellant on account of higher price adopted at the Department and Rs. 171691/- has to be refunded to him on account of lower price adopted at the Depot. Revenue is aggrieved on two counts. 1) In the impugned order, the LAA has taken a view that there is no unjust enrichment thanks to raising of credit notes by the appellant. It is a fact on record th....
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.... Assessee was unable to establish that the duty qua which refund was claimed had not been passed on to the ultimate customer. 4. It is, in this background, that the Assessee preferred an appeal with the Tribunal. The Tribunal, via the impugned judgment and order, which is rather cryptic, reversed the order of the Commissioner (Appeals). 4.1. The reversal was carried out by the Tribunal, on two (2) grounds: first, that upon finalisation of the provisional assessment, the excise duty paid is to be adjusted against duty short paid and, thereafter, based on the difference, it has to be determined whether any amount is to be refunded or not to the Assessee. Second, that the refund claim made by the Assessee was admissible, as the burden of duty, had not been passed on by it to its customers. This latter conclusion, the Tribunal reached, based on the fact that the Assessee had issued credit notes, albeit, after the incidence of duty had been passed on to the customer. In this behalf, the Tribunal relied wholly upon the judgment of the Rajasthan High Court in the matter of: Union of India V. A.K.Spintex, 2009 (234) ELT 41 (Raj.) 4.2. It is, in these circumstances, that the Revenue has ....
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....erest. Interest was calculated on Rs. 2,22,338/-. Interest was required to run between 01.01.2004 and the date of payment. 8.1. In so far as the refund sanctioned in favour of the Assessee, a show cause notice was issued on 29.10.2007 by the Assistant Commissioner, Hosur, 1st Division. This show cause notice was predicated on the fact that since, refund had been filed after credit notes were issued to the customer on 28.01.2005, it could not be established that duty had not been passed on to the customers. 8.2. In this behalf, provisions of Section 11AB of the 1944 Act were relied upon by the Revenue. In addition to the above, the Revenue preferred an appeal with the Commissioner (Appeals), who vide order dated 27.07.2009 reversed the order dated 29.08.2007. 8.3. The Tribunal, however, by way of impugned judgment and order reversed the aforementioned order of the Commissioner (Appeals). 8.4. As noticed above by us, the Commissioner (Appeals) has returned a finding of fact that the Assessee was not maintaining stock wise and item wise accounts in the Depots qua goods received from the factory and their onward dispatch to the customers. In other words, no correlation could be ma....
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....evenue to the Supreme Court. The Supreme Court, while hearing a batch of appeals, which included the appeal in the matter of: Commissioner of Central Excise, Madras V. Addison & Co. Ltd. [2016] 10 SCC 56, to which we have made a reference above, reversed the judgment of the Rajasthan High Court [See paragraph Nos.3, 34, 37 and 40]. 10.2. We may only note, that in paragraph 3, a typographical error seems to have crept in, wherein, the cause title of the Rajasthan High Court judgment is shown as A.K.Spintex V. Union of India, whereas, it ought to be the other way round. Notably, the same judgment of the Supreme Court, i.e., Commissioner of Central Excise, Madras V. Addison & Co. Ltd. [2016] 10 SCC 56, as reported in the ELT, adverts to the correct cause title of the judgment, passed by the Rajasthan High Court, i.e., Union of India V. A.K.Spintex. As indicated above, the judgment of the Rajasthan High Court has been reversed, which was numbered as S.L.P.(C) No.25055 of 2009. In the operative part, in paragraph 40 of the judgment reported in the SCC, the Union of India's appeal has been allowed. 11. Therefore, quite clearly, the basis of the judgment of the Tribunal does not hol....