TMI Blog2018 (5) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant. Sh. C. Sumanth, Advocate for the Respondent. appeal is directed against Order-in-Appeal No. 141 / 2009 (V-l) CE dated 23.12.2009 and it is filed by the revenue. The relevant fact that arise for consideration are the respondent herein is manufacture of High Carbon Ferro Chrome (HCFC) and clear the same to the sister unit at Haryana for further use in the manufacture of Stainless Steel The said HCFC is cleared at the rate of 110% of the cost of production; as the cost of production is not known at the time of the clearance and the same would be known at he time of finalization of accounts, the Respondent opted for provisional assessment which was accepted by the department and assessment were made provisionally. For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and drawing our attention to his submission that the total period considered finalisation of assessment, in this appeal is almost 1 year and adjustment of short payment of duty to excess payment of duty is incorrect and referring to the provisions submit it would indirectly be refunding the amount of excess payment of duty without considering the doctrine of unjust enrichment. It is his submission that the appellate authority should have contested the matter and should not have remitted it to the lower authorities. 3. Ld. Counsel appearing for the Respondent submits that identical issue has been decided by the Hon'ble High Court of Karnataka in the case of Toyoto Kirloskar Auto Pans Pvt. Ltd., 2012 (276) E.L.T. 332 (Kara ) and in pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excisable goods or determine the rate of duty applicable thereto, he may request the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, in writing giving reasons for payment of duty on provisional basis and the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, may order allowing payment of duty on provisional basis at such rate or on such value as may be specified by him. (2) The payment of duty on provisional basis may be allowed, if the assessee executes a bond in the form prescribed by notification by the Board with such surely or security in such amount as the Assistant Commissioner of Central Excise or the Deputy Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund. at the rate specified by the Central Government by notification issued under Section 11BB of the Act from the first day of the Month succeeding the month for which such refund is determined, till the date of refund. (6) Any amount of refund determined under sub-rule (3) shall be credited to the fund: Provided that the amount of refund, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to- (a) the duly of excise paid by the manufacture, if he had not passed on the incidence of such duly to any other person; (b) the duty excise borne by the buyer, if he had not passed on he incidence of such duty to any other person. 7. A perusal of the aforesaid provision makes it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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