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TMI Blog2009 (11) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... did not claim any abatement on this count for arriving at the assessable value for payment of Central Excise duty. Ultimately the respondents failed to succeed and they had to pay the luxury tax imposed by the Maharashtra Government which the respondents paid and as a consequence of the demand of said luxury tax, the respondents filed a refund claim being the amounts of Central Excise duty corresponding to the reduction in assessable value if the luxury tax paid by the respondents are deducted from the sale price in terms of Sec. 4(3)(d) of CEA, 1944. The claims were sanctioned by the Asstt. Commissioner. The department filed an appeal against the same but the appeal was rejected. A show cause notice was also issued but at the same time the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the ratio of the case law in the case of Priya Blue Industries Ltd. - 2004 (172) E.L.T. 145 (S.C.) and Flock India Private Ltd. - 2000 (120) E.L.T. 285 (S.C.) is squarely applicable. He further submits that the respondents contention by not claiming the deduction on account of the luxury tax, they had paid more Central Excise duty and therefore on their making payment of the luxury tax at later date they were entitled to the refund of excess duty paid by them at initial stage is not correct. He further submits that the claim of refund claim of the said differential amount of duty which should have been recovered from the customers, the bar of unjust enrichment is rightly applicable on the respondents. 5. On the other hand Shri Prab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was being withheld by the respondent on account of representation having been made to the Government of Maharashtra, the assessee could have as well retained the luxury tax payable in a sundry account to be paid at a subsequent date to the Government of Maharashtra and in such a case a lower amount of Central Excise duty would have been paid by the respondent at the time of clearance of the goods. However, due to non abatement of luxury tax [as per the explanation to Section 4(1)], the respondent paid extra Central Excise duty which became refundable to the respondent after payment of luxury tax for the said period to Government of Maharashtra. 6. He further submits that the amount of differential duty excess paid by the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the impugned order be upheld and the appeal filed by the Revenue be dismissed. 9. On careful examination of the submissions made by both the parties, I find that the Commissioner (Appeals) has discussed the issue in detail and allowed the appeal of the respondents. Further, I find that the respondents have not charged any extra amount on account of luxury tax from their customers and the price at which the snuff was sold was inclusive of all duties and taxes and the respondents have not paid the amount of luxury tax at the time of clearance as the respondents were contesting the levy of luxury tax but later on it was paid by the respondents out of the realized amount from the customers which was cum-duty price. Hence, I find that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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