TMI Blog2018 (4) TMI 611X X X X Extracts X X X X X X X X Extracts X X X X ..... which amounts to captive consumption there is no sale of the goods, hence the incidence of duty paid in excess was not passed on - Held that: - even in respect of captive consumption, unjust enrichment provision is applicable as held by Hon'ble Supreme Court inc case of Union of India vs. Solar Pesticides Pvt. Ltd. [2000 (2) TMI 237 - SUPREME COURT OF INDIA] - it is obvious that when the goods is sold all the cost of raw material including taxes, duties thereof is considered for arriving at the cost of final product. Since the appellant and the recipient unit are under the same umbrella of one company, balance sheet of company consist of final sale transaction takes place by all the units therefore whether there is sale between appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be taken as per CAS-4. In this method of valuation final value cannot be determined at the time of clearance of the goods for the reason that CAS 4 can be finalised only after completion of financial year. The appellant approached department for provisional assessment vide their letter dated 9-5 2006 however department responded that the valuation should be adopted as per CAS-4. Appellant discharged the duty on the provisional price at the time of clearance of the goods and on finalisation of value on the basis of CAS4 there arose some excess payment of duty for which refund claim was filed. The cost accountant's CAS-4 certificate was submitted on 18-1-2010 and 22-12-2010 against which refund claim was filed on 21-9-2010 and 27-12-2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue reiterates the findings of the impugned order. He submits that since there is no provisional assessment of duty, refund claim filed after one year period from the date of payment of duty is clearly time barred as per provision of Section 11B of Central Excise Act, 1944. As regard the unjust enrichment, he submits that merely because of goods cleared by the appellant is for captive consumption by their own unit, appellant cannot be exonerated from the test of unjust enrichment. As per Section 11B, it is statutory requirement that for allowing refund claim, it is to be established that duty for which refund is sought for has not been passed on to any other person. He placed reliance on the following decisions. (a) Traco Cable Co. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te, only on obtaining CAS-4 certificate appellant could established excess payment of duty. Therefore in my considered view the refund claim filed after finalisation of the price i.e. on submission of CAS-4 certificate, refund is well within time period of one year therefore I hold that refund claim is not time barred. As regard the unjust enrichment, submission of the appellant is that since the goods were cleared to their own unit which amounts to captive consumption there is no sale of the goods, hence the incidence of duty paid in excess was not passed on. I do not agree with this contention for the reason that even in respect of captive consumption, unjust enrichment provision is applicable as held by Hon'ble Supreme Court inc case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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