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TMI Blog2011 (7) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... arance of the goods and actually the price is reduced, therefore, the manufacturer is entitle for refund of the difference between the amount actually paid and amount becoming payable in terms of modified price - Such a variation of price or lesser payment of price subsequent to the clearance of the goods either on account of some agreement between the manufacturer and the buyer which has no sanction under the statute dealing with the duty liability can be of no help to the assessee to claim refund Regarding contention about non applicability of principles of unjust enrichment - Merely because the manufacturer receives an amount lesser then what has been disclosed in the invoice issued at the time of clearance of goods and payment of duty that itself cannot construe to means that the manufacturer has not passed on the burden of excise duty on the customer - Such receipt of lesser amount could be for various reasons, being so, it cannot be said that the principles of unjust enrichment would not be applicable in relation to the cases of the type in the matter in hand - Decided against the assessee - 1449 of 2009 - 581/2011-EX(PB) - Dated:- 8-7-2011 - Shri Justice R.M.S. Khan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 6. The appellants, therefore filed a refund claim of Rs. 14,44,527/- (BED : Rs. 1408448/- plus Education Cess : 28,169/- plus Rs. 7912/-) to the Deputy Commissioner of Central Excise, Sonepat vide their letter No. SPT/REFUND/NNK dated 6.7.2007. The Assistant Commissioner of Central Excise, Sonepat vide order-in-original No. R-185/AC/SNP/07 dated 16.11.2007 sanctioned the said refund claim. The Commissioner of Central Excise, Rohtak reviewed the order of the Assistant Commissioner dated 16.11.2007 under Section 35E(2) of the Central Excise Act, 1944 and directed the Assistant Commissioner, Central Excise, Sonepat vide his direction order No. 33/2007 dt. 8.2.2008 to file an appeal before the Commissioner (Appeals) Delhi-III, Gurgaon. The Assistant Commissioner, Sonepat in accordance with the direction order No. 33/07 dt. 8.2.2008 filed an appeal before the Commissioner (Appeals), Delhi-III, Gurgaon. Relying on the appeal filed before the Commissioner (Appeals) on the basis of review order dt. 8.2.2008, the Joint Commissioner of Central Excise, Rohtak issued a protective show cause notice No. 12/CE/JC/SNP/HQ/08 dt. 10.04.2008 to recover the refund granted to them. The appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that the assessment is neither provisional nor was there any request for making any provisional assessment is not relevant to decide the dispute in question. The provisional assessment was not mandatory. The provisional assessment is required to be resorted to where the assessee is unable to determine the value of the excise goods or determine the rate of duty applicable thereto. The rule No. 7 of Central Excise Rules 2002 state that the provisional assessment is required only where the assessee is unable to determine the value of excisable goods or determine the rate of duty thereto. Further, the rule provides that the assessee may request the Assistant Commissioner or Deputy Commissioner for allowing payment of duty on provisional basis, thereby allowing a choice to the assessee. In the instant case, it cannot be said that the appellants were not able to determine the value of the goods cleared, and it is clear from the purchase order itself. The only possibility was that the price was to vary depending on the formula to be revised by the IEEMA. If there was no revision of the formula by IEEMA, there would have been no variation in the price either upwards or downwards. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws that excise duty amounting to Rs. 3,69,48,023/- has been reimbursed to the appellants against the excise duty paid was Rs. 3,84,78,720/- resulting in an excess payment of Rs. 14,44,529/-. The said excess duty paid by the appellants is liable to be refunded to them. In view of the above, it is wrong on the party of the Commissioner (Appeals) to hold that the CA certificate produced by the appellants is insufficient. The impugned order-in-appeal is liable to be set aside for this reason itself. 11. The principles of unjust enrichment will not apply as the duty has not been passed on to the buyers or to any other person. The principles of unjust enrichment do not apply to the present case inasmuch as the appellants have not received the excess duty paid by them from their buyers or any other person. The appellants submit that the value (price) of the goods was in fact reduced by the PSEB and they reimbursed only excise duty applicable to the lower value paid by them. As against the excise duty payment of Rs.3,84,78,720/- by the appellants, the buyers only reimbursed excise duty amount of Rs.3,69,48,023/-.Therefore, there is no question of passing on any duty to the buyers or an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from or paid by him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person. The first proviso thereto provides that where an application for refund has been made before the commencement of the Central Excises and Customs Law (Amendment) Act, 1991, such application shall be deemed to have been made under the amended provision of law and second proviso prescribed limitation of one year would not apply where the duty and interest if any paid on such duty has been paid under protest. Provision of law comprised under Section 11B, therefore, relates to the procedure for filing refund claim application. It does not speak of entitlement of refund as such. However, there is one important expression used in the said provision and that is relating to the period within which such application is made and that is very relevant for deciding the matter in hand. The provision under Section 11B specifically provide that refund should be claimed within one year from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of removal the assessee and the buyer of the goods are not related and the price is the sole consideration for the sale then such value can be the transaction value and in any other case including the case where the goods are not sold, the value shall be the value determined in such manner as may be prescribed. In other words, for the purpose of determining the duty liability the value of the goods is to be determined either as transaction value or as is prescribed under the rules. It is not in dispute in the case in hand, such value has necessarily to be at the time of removal of the goods. The expression time of removal has been defined under clause (cc) of sub-section (3) of Section 4. It provides that the time of removal in respect of the excisable goods removed from the place of removal referred to in sub-clause (iii) of clause (c ), shall be deemed to be the time at which such goods are cleared from the factory. Clause (c) (iii) defines the place of removal to mean a depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory. Taking into consideration all this aspects of the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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