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TMI Blog2009 (2) TMI 677X X X X Extracts X X X X X X X X Extracts X X X X ..... y gate and also through depot. They opted provisional assessment for payment of duty in respect of depot sales. The appellants filed refund claim consequent upon the finalization of provisional assessment. The original authority sanctioned the refund claim. The Revenue filed appeal before the Commissioner (Appeals) whereby the adjudication order was set aside and appeals of the Revenue were allowed. Hence, the appellant filed these appeals. 2. Learned Advocate on behalf of the appellants submits that the original authority sanctioned the refund claim holding that provisional assessment for the period in dispute was finalized on the basis of the price prevailing at depot on the day when the goods were cleared from the factory. He submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther person. He relied upon the decision of the Tribunal in the case of United Spirit Ltd. v. C.C. (Import), Nhava Sheva, reported in 2008 (228) E.L.T. 360 (Tri.-Mumbai). He also submits that the Commissioner (Appeals) rightly observed that in order to fulfil the doctrine of unjust enrichment, the appellants have to justify that the same goods cleared from the factory gate were sold from depot to the customer at a lower price. 4. After hearing both the sides and on perusal of the records we find that there is no dispute that the appellants opted provisional assessment for selling of the goods from depot. Rule 7 of Central Excise (Valuation) Rules, 2000 provides that where the excisable goods were not sold by the assessee at the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts failed to prove that the duty burden has not been passed on to other persons. It has been observed that the goods cleared from the factory and the goods sold from depot on a particular day are different. We are unable to accept the finding of the Commissioner (Appeals). We agree with the finding of original authority. 6. The original authority rightly held that depot price is relevant for the purpose of assessment. It is proved that the price at depot was lower than the factory gate price. So, there is no reason to look into as to what price goods were sold subsequently. In this connection we reproduce the relevant portion of the decision of the Tribunal in the case of Carborandum Universal Ltd. (supra) :- "5. On a very care ..... X X X X Extracts X X X X X X X X Extracts X X X X
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