TaxTMI 
TaxTMI 
2019 (3) TMI 1091
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....r Kit Store (depot) stating that the value adopted at the time of removal from the factory gate was higher than the value prevailing at or about the same time at the depot for the same goods. 2. A Show Cause Notice was issued proposing to reject the refund claim alleging that the appellant has not adopted Rule 7 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000. The appellants had revised their refund claim to Rs. 16,65,845/-. After due process of law, the Original Authority vide Order dated 31.10.2005, rejected the refund claim stating the reason that the appellant had not opted for provisional assessment. In appeal, the Commissioner (Appeals) vide Order-in-Appeal No. 56/2007 dated 31.05.2007 remanded....
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....d reduced prices were implemented for the goods removed from the factory with effect from 01.03.2005. Consequently, the appellant preferred a refund claim on 15th April, 2005 for the excess duty paid at the factory gate during such period amounting to Rs. 13,23,279/-. 1.2 A Show Cause Notice dated 14.09.2005 was issued proposing to deny the refund claim on the ground that the refund claim is not in accordance with the provisions of Rule 7 of the Central Excise Valuation Rules, 2000. Prior to adjudication of the Notice, the appellant revised their refund claim as per the provisions of Rule 7. The claim of refund as per the revised computation worked out to Rs. 16,65,845/- i.e. higher than the initial claim of Rs. 13,23,279/-. The lower adju....
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.... Department has not issued any Show Cause Notice for recovery of erroneously granted refund; 1.4 Against such order of sanction of refund, the Department preferred an appeal before the Commissioner (Appeals) who has set aside the Order-in-Original dated 06.01.2009 and denied the refund claim on the ground that the value of goods adopted by the appellant in their refund worksheet is not in consonance with Rule 7 and therefore, the Order sanctioning refund is incorrect. 2.1 The appellant, upon clearance of the assemblies to the Kit Stores, paid excise duty in terms of Rule 7 of the Central Excise Valuation Rules. On subsequent sale to the customers from the Kit Stores, the commercial invoice was raised only for the gross value and the excis....
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.... on this score also, merits to be set aside. 2.4 The appellant has availed the refund as Credit consequent to the order of the Ld. Assistant Commissioner dated 06.01.2009. The Department has not issued a Show Cause Notice seeking to recover the alleged erroneously granted refund. It is a settled principle that an appeal under Section 35E and a Show Cause Notice to recover the erroneously granted refund under Section 11A will have to be cumulatively satisfied in order to recover the refund sanctioned. In this regard reliance is placed on the following case laws : * C.C.E. Vs. Pricol Ltd. - 2015 (320) E.L.T. 703 (Mad.) * Golden Plast Rigid PVC Pipes Vs. C.C.E. - 2018 (13) G.S.T.L. 321 (Tri. - Chennai). In this case, since no Show Caus....
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....f justice, it will be appropriate to remand the matter to the original authority to examine the aspect that the appellant reduced the selling price of assemblies to be charged at the kit stores with effect from 20th January 2005 and they continued to adopt the then availing selling prices and effected clearances of assemblies to kit stores in which excise duty was paid on the higher value in spite of the fact that the company had effected reduction in the selling price with effect from 20.01.2005 without raising the issue of provisional assessment since the provisional assessment or no provisional assessment does not make any difference as the appellant filed the refund at the initial stage and the revised amount within the time limit presc....
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....nt or no Provisional Assessment does not make any difference as the appellant filed the refund at the initial stage and the revised amount within the time limit prescribed under Section 11AB of the Central Excise Act, 1944. (ii) The question of unjust enrichment should also be examined in case the refund is found to be admissible. As far the first direction is concerned, the assessee filed the refund claim on 15.04.2005, well within the one year period stipulated in Section 11B of the Central Excise Act, 1944 and from the records, it is seen that the assessee adopted higher value at factory gate than the value of the goods cleared at the Kit Stores. As far as the second direction is concerned, I find from the invoices submitted by the ....