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TMI Blog2014 (9) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... T [Judgment per : K.B.K. Vasuki, J.]. - The Revenue is on appeal as against the order of the Customs, Excise and Service Tax Appellate Tribunal passed in Final Order No. 968/2004, dated 26-10-2004 [2005 (180) E.L.T. 47 (Tri. - Chennai)], raising the following substantial question of law :- "Whether the Tribunal is correct in holding that the lower sale price for goods cleared at Depot on subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... price on the date of clearance from the factory premises and declared the same as final price and as the assessee has chosen to declare the different price and later claimed a refund on the ground the depot transactions on that day took place at a lower price, the assessee is disentitled to claim any refund and hence rejected the claim. Aggrieved by the same, the assessee preferred separate appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts of the case involved in the case above cited are identical with that of the instant case and hence, applying the same decision, allowed the refund claim made by the assessee for the present case and allowed the appeal, however, subject to condition that claimant establish before the original authority that the claim is not hit by the bar of unjust enrichment. Hence, this appeal by the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the date on which the goods are cleared from the factory. In such cases, it is the duty of the assessee to ascertain the price prevailing on the factory as well as in the depot and to quote prevailing lower price beneficial to the assessee and as the choice is given to the assessee, the price quoted by the assessee shall be the final price and shall be the price for assessment. The case relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts of the present case. It is to be noted that the lower appellate authority citing the above said decision rejected the claim of the assessee, which is clearly applicable to the facts of the present case. 9. Going by the factual situation, we are of the considered view that the CESTAT had grossly erred in adopting the rates, which are contrary to the actual rates and totally contrary t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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