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TMI Blog2011 (11) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and credited to the consignee and the entire burden of duty has been borne by the assessee and has not been passed on to the consignee. Therefore, we hold that conditions of Section 11B of the Act have been satisfied. - Refund allowed - Decided in favor of the assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... produced, he agreed with-the-contention of the assessee that the entire excess duty paid amounting to Rs. 80,161/- was borne by them and therefore was of the view that the excess duty paid need not be retained by the department and accordingly, sanctioned refund of Rs. 80,161/- by order dated 17-7-2002. Being aggrieved by the said order, the revenue preferred an appeal No. 96/2003 BM(D) before the Deputy Commissioner of Central Excise (Appeals), Mangalore. The first appellate authority, by order dated 23-2-2004 held that in view of the decision of the CESTAT in the case of S. Kumar's Limited (2003 (55) RLT 399), provisions of unjust enrichment are attracted in case of post clearance adjustments and refund is not permissible and accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Supreme Court has observed as follows: "Once the assessee has cleared the goods on the classification and price indicated by him at the time of the removal of the goods from the factory gate, the assessee becomes liable to payment of duty on that date and time and subsequent reduction in prices for whatever reason cannot be a matter of concern to the Central Excise Department insofar as the liability to payment of excise duty was concerned. Therefore, subsequent fluctuation in the prices of the commodity can have no relevance whatsoever so far as the liability to pay excise duty is concerned, unless it is shown that there was some agreement in this behalf with the Government and the latter had agreed to refund the excise duty to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed price at which tyres were sold. The price was approved by the Government. In that case, the assessee submitted that its price list was approved by the Government on 14th May, 1983, but subsequent thereto, on account of consumer resistance, the Government of India directed the assessee to roll back the prices to pre-14th May, 1983 level and on that account, price differential arose on the basis of which the assessee claimed refund of excise duty which stood rejected by this Court on the ground that once the assessee had cleared the goods on classification, the assessee became liable to payment of duty on the date of removal and subsequent reduction in the prices for whatever reason cannot be made a matter of concern to the Department inso ..... X X X X Extracts X X X X X X X X Extracts X X X X
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