9911796707
TMI Blog1996 (12) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was upheld by the Supreme Court on appeal by the Government with the direction to assess the goods with reference to the value at which the present appellants had sold the goods to their wholesale dealer. It was further directed that such fresh assessment shall be made in accordance with the judgment in the Bombay Tyre International case and that if on such assessment being made, it was found that any amount was refundable by the Government to them, the same shall be refunded. The Assistant Collector then granted the refund to the appellants on 23-10-1986. Thereafter, a show cause notice was issued on 22-4-1987 within the period of six months from the date of refund on the ground that the refund amount was actually includible in the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ik, learned SDR. He submitted that it has been held in several cases by the High Courts and the Tribunal that where refund becomes due to an assessee as a result of reassessment and that refund is of an amount already recovered by the assessee from his customers and the benefit of refund is also not passed on to them, that amount is to be taken into account in the redetermination of the assessable value and the duty leviable calculated accordingly. If refund had already been sanctioned and paid to the assessee it will be a case of erroneous refund and that would call for interference invoking the provisions of Section 11A of Central Excise Act, 1944 (Act, for short hereinafter) as has been done in this case. The appeal may, therefore, be di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is basis, the price charged by the appellants from their wholesale dealers will be arrived at by including the duty originally paid by them. What is eligible for deduction therefrom is the reduced amount of duty on the basis of the lower value based upon their prices to their wholesale dealer. Such an issue involving the effect of refund on redetermination of assessable value came up for decision before the Full Bench of the Karnataka High Court in Union of India v. Alembic Glass Industries reported in 1992 (61) E.L.T. 193 where they had answered the questions referred to them for their opinion by the referring Bench in the following manner :- (1) As per the second part of the explanation to Section 4(4)(d)(ii) of the Act, the effective ..... X X X X Extracts X X X X X X X X Extracts X X X X
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