2011 (7) TMI 414

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..... assessee subject to the applicability of the principles of unjust enrichment and only after that the amount is adjustable - The appellant is at liberty to produce document in support of their contention that they have not passed on the incidence of duty to their customers - Decided in favour of the assessee by way of remand
Shri S.K. Gaule, J. Shri Gopal Krishna Mundhra, Authorized Representative for Appellants Shri Manish Mohan, SDR for Respondent Per: S.K. Gaule Heard both sides. 2. The appellants filed these appeals against Order-in-Appeal No. AH/2 to 5/M-III/2008 dated 19.01.2009 whereby Commissioner (Appeals) has upheld the lower adjudicating authority s order denying the adjustment of payment of duty. Since the issue invo .....

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..... horities have found that some of the period is covered under Rule 9B where adjustment is allowable, however, the benefit has not been extended. The respondent also placed reliance on the decision of this Tribunal vide Order No. A/159-160/2009/SMB/C-IV dated 06.04.2009 allowed the benefit in the case of period covered under Rule 9B. The contention is that they are supplying the intermediate products to their sister units, therefore, the incidence of duty is not passed on. 5. The learned SDR reiterates the findings of the lower authorities. He submitted that Rule 7 of Central Excise Rules, 2001/2002 provides that adjustment is only allowable if doctrine of unjust enrichment is not applicable. He also contended that Hon'ble Supreme Court in .....

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..... s relatable to (a) the duty of excise paid by the manufacturer, if he had not passed on the incidence of such duty to any other person; or (b) the duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person. 7. Larger Bench of the Tribunal in the case of Excel Industries Vs. Commissioner of Central Excise, Hyderabad 2011 (268) ELT 419 (Tri-LB) has held as under: - 50. The fallout of the above discussion is that once the authority on finalization of assessment finds any amount of money having been paid in excess of the duty liability ascertained in the final assessment, the excess amount so ascertained would become refundable to the assessee. Such excess amount can certainly be adjusted t .....

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