TMI Blog2018 (12) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent ORDER Per: S.S GARG The present appeal is directed against the impugned order dated 01.02.2018 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has upheld the Order-in-Original in respect of unjust enrichment aspect. Briefly the facts of the present case are that the assessees are manufacturer of pneumatic tyres and other parts and had opted for provisional assessment under Rule 7 of the CER 2002 in respect of the goods cleared for the year 2015-16 on the ground, that the transaction value can only be determined after confirming various discounts that are offered at later dates and not known at the time of clearances from the respective factories. As per the request of the assessees, the clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is no more res integra and has been settled by the Karnataka High Court in the case of Toyota Kirloskar Auto Parts Pvt. Ltd. Vs. CCE, LTU, Bangalore 2012 (276) E.L.T. 332 (Kar.). He further submitted that on the identical issue in the appellant s own case the Division Bench of this Tribunal vide its Final Order Nos. 20596 20603/2018 dated 11.04.2018 has relied upon the decision of the Karnataka High Court in the case of Toyota Kirloskar Auto Parts Pvt. Ltd. and the decision of the Tribunal in the case of Indian Telephone Industries. He further submitted that in the earlier decision both the authorities have held that unjust enrichment is not applicable whenever there is a provisional assessment and in an appeal filed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been granted without considering the aspect of unjust enrichment. Revenue has argued that even in the case of provisional assessment finalization, refund can be granted only subject to the test of unjust enrichment. 5.1. We note that an identical issue came up before the Tribunal in the case of Indian Telephone Industries which was decided vide Final Order Nos. 21010 21011/2016 dated 20.10.2016, wherein while disposing the Revenue s appeal the Tribunal observed as follows: 6. The learned advocate on behalf of the respondent-assessee defended the impugned order. He submitted that the decision of the Larger Bench in the case of Excel Rubber Ltd. (supra) as well as the decision of the Hon ble Karnataka High Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is required to be done. However, reference can be made to latest decision in the case of Hindustan Zinc Ltd. Vs. Commissioner of Central Excise, Jaipur: 2015-TIOL-2427-CESTAT-DEL. wherein there was originally difference of opinion between the two Members of the Bench and the issue was decided by the third Member. It was held that the assessee is entitled for adjustment of excess paid duty with the short-paid duty during the period of provisional assessments, upon finalization of the assessments. Inasmuch as the issue is decided by the majority decision of the Tribunal in favour of the assessee, we find no merits in the Revenue s appeal. The same is accordingly rejected. Since the facts involved in the present two appeals as well as t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
