TMI Blog2017 (8) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, unjust enrichment is not attracted. It is an admitted fact that the appellant have received the same price/MRP for clearances of goods on 06 December, 07 December, 08 December, and so on. Accordingly there can be no presumption that the appellant have passed on the excess duty deposited erroneously on 07 December, to the buyer of the goods - the doctrine of unjust enrichment has been satisfied by the appellant assessee and appellant are entitled to refund of the amount in question. Appeal allowed - decided in favor of appellant. - E/1824/2010 & E/1320/2011-EX [SM] - A/70748-70749/2017-SM[BR] - Dated:- 4-8-2017 - Mr. Anil Choudhary, Member (Judicial) Ms. Stuti Saggi (Advocate) for Appellant Shri Rajeev Ranjan Joint Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant and refund to this effect was submitted by their letter dated 29 January, 2009 to the Deputy Commissioner of Central Excise, Raebareli and claiming therein refund of ₹ 2,49,303/- as excess amount of duty paid by them. Pursuant to issue of show cause notice dated 22 April, 2009, the matter was adjudicated by the Deputy Commissioner by order dated 25 August, 2009, wherein the refund was sanctioned under Section 11 B of the Act. The amounts of refund was allowed to be taken as credit in the Cenvat account. Being aggrieved with the Order-in-Original, Revenue filed appeal before the Commissioner (Appeals) on the grounds that the invoices issued by the respondent-assessee on 07 December, 2008, separately indicate the amount of du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the customer. It is also pointed out that before passing the Order-in-Original, verification report on the genuiness of the claim was called from the Jurisdictional Superintendent, who had reported as follows : In this connection, it is also to be submitted that M/s Birla Corporation Ltd., clears their goods on MRP based assessment and they charge the price from the parties/customers on the basis of contracts made between them and customers. Therefore, in this case the excise duty which is paid by them does not fluctuate for the recovery from the customers. Thus, unjust enrichment is not applicable in this case. 3. The learned Commissioner (Appeals) taking notice of the Provisions of Section 11B of the Central Excise Act and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i.-Bang.) and in the case of Girish Foods Beverages (P) Ltd. v/s CCE, Pune reported at 2007 (211) ELT 388 (Tri.-Mumbai). 5. It is further urged that the findings of the Adjudicating Authority based on the verification report of the Range Superintedent have not been found untrue and as such the order of the learned Commissioner is cryptic and non-speaking. It is not the case that the Adjudicating Authority did not consider the doctrine of unjust enrichment, as observed by the learned Commissioner (Appeals) rather the fact on record is that after due consideration of the doctrine of unjust enrichment, as required under Section 11B of the Act, the Adjudicating Authority held that the appellant assessee have not passed on the duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nrichment is not applicable. In the said ruling this Tribunal considered the ruling of Hon ble Supreme Court in Commissioner v/s Allied Photographics India Ltd - 2004 (166) ELT 3 (S.C). It was also observed that duty based upon MRP on the final products, which remained constant in spite of the fact of payment of higher duty. As such when the product is leviable to duty in terms of MRP, it cannot be concluded that the value of the final products fluctuated on account of payment of differential duty. The appellant also relied on the ruling of Hon ble Supreme Court in the case of CCE v/s Panihati Rubber Ltd - 2006 (202) ELT 41 wherein the assessee manufacturer was supplying goods manufactured to the Railways. The goods were manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same being nil, the Tribunal may be correct in its opinion that the question of excise duty having been passed on by the respondent assessee to the Railway Administration, would not arise. 8. Having considered the rival contentions and the case laws referred to hereinabove, it is an admitted fact that the appellant have received the same price/MRP for clearances of goods on 06 December, 07 December, 08 December, and so on. Accordingly I hold that there can be no presumption that the appellant have passed on the excess duty deposited erroneously on 07 December, to the buyer of the goods. Accordingly, I hold that the doctrine of unjust enrichment has been satisfied by the appellant assessee and I hold them entitled to refund of the amo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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