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TMI Blog2014 (10) TMI 678X X X X Extracts X X X X X X X X Extracts X X X X ..... ismiss the appeal of the Revenue. The respondent assessee will be entitled to refund with interest, if any - Decided against Revenue. - Appeal N0. E/2560/05 - - - Dated:- 12-8-2014 - Anil Choudhary, J. For the Appellant : Shri. Rakesh Goyal, Addl. Commissioner (AR) For the Respondent : Shri A.V. Naik, Adv. JUDGEMENT Per: Anil Choudhary: The Revenue is in appeal against Order-in-Appeal No. P-II/BKS/145/05 dated 18.3.2005 passed by the Commissioner of Central Excise (Appeals), Pune II. 2. The brief facts of the case are that the respondent M/s S.G. Phyto Pharma Pvt. Ltd. (hereinafter referred to as SGPP in short) is engaged in the manufacture of Generic and Patent and proprietary medicaments of Ayurvedic falling under CSH NO. 3003.39. The respondents were clearing the goods to M/s Phyto Marketing Pvt. Ltd. Some of the Directors of the respondent company and of the said Phyto Marketing Pvt. Ltd. were relatives. The respondent paid duty on the value at which the goods were sold by Phyto Marketing Pvt. Ltd. in the market as per their own appreciation of law. Although the Directors of the two companies are not common but a few Directors are related, they d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of the goods sold to Phyto Marketing Pvt. Ltd. before the disputed period and during the disputed period is the same. In support, certificate of C.A. dated 10.3.2005 was also filed. The respondent have also brought on record sample copy of the excise invoice/commercial invoice in support of its contention that they have borne the differential duty and had not passed on the same to its buyer. Accordingly, it was further contended that the doctrine of unjust enrichment is not applicable in this case in the light of TECIL Chemicals Vs. Commissioner of Central Excise -2003 (151) ELT 136 and also the ruling in the case of Uniproducts (India) Ltd. Vs. Commissioner of Central Excise, Delhi -2004 (170) ELT 299. Further, an affidavit was also filed by the respondent before the Commissioner (Appeals) that they have not realized the differential duty from its customers. 3. The learned Commissioner (Appeals) took notice of the fact that in course of the goods sold to Phyto Marketing Pvt. Ltd. before and during the period of refund claim have remained the same and further relied upon the certificate produced from the C.A. in support of the contention and also relied on the sample ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o CEAT were made on provisional basis under Rule 9B and the manufacturer was required to discharge duty provisionally on the assessable value derived only after deducting 15% tentative deduction from the sale price of CEAT Ltd. The provisional assessments were finalized by the Revenue and the demand of differential duty for the said period was confirmed based on the ultimate sale price of the goods sold by CEAT Ltd. in the market. In the appeal filed by M/s SATPL, the learned Commissioner (Appeals) had held that excise duty liability on the said goods was to be discharged by M/s SATPL on price for delivery at the time of clearance and removal of the goods i.e. the basis of provisional assessment was held to be improper and consequently, M/s SATPL had filed refund claim for excise duty paid and the same was rejected on the ground of unjust enrichment, which was also upheld by the Commissioner (Appeals). This Tribunal considered the facts and circumstances and the grounds taken by CEAT Ltd., that the price have remained the same during and after the period of refund. Following the decision of the Hon'ble Supreme Court in the case of Allied Photographics India Ltd. -2004 (166) ELT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e states that there is not dispute regarding the fact that the assessee has not collected anything more than what is stated in the commercial invoices and in view of the categorical finding of the Court below of not having any amount over and above the price as per commercial invoice, there can be no presumption that the respondent have collected the differential duty which it have claimed as refund. The respondent has also produced the balance-sheet along with invoices which was also considered by the Commissioner (Appeals). On perusal of the invoices, the balance-sheet and details sheet which contained the details of the working of the price collected, it is evident that payment is received as per the commercial invoice and the duty paid as per the excise invoices. Further, it was noticed that both the commercial and excise invoice are of even date. It is further pleaded by the respondent that the excise duty forms part of the assessable value for the purpose of Sales Tax calculation, and it is evident that they have charged Sales Tax by taking the lower assessable value and duty thereon for the said purposes. The respondent further relies on the ruling of the Hon'ble Apex Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elivered from a factory or a warehouse except under an invoice signed by the owner of the factory or his authorized agent and such invoice in case, the goods were covered under Chapter VIIA, such invoices were required to be countersigned by the proper officer. Rule 58 provided the various informations to be included in the invoices which included that the manufacturer is required to furnish declaration at Sr. No. (ix) to (xiii), which were Assessable value/Tariff value per unit, Total assessable value/tariff value, Tariff Heading No./Exemption Notification No., Rate of duty and total duty paid. It was found that it was not the case where the assessee had paid the duty and recovered the same. The declaration under the invoice was in pursuance to requirement, which requires to state and satisfies that particular in invoice are correct and represent the duty actually charged and there is no flaw in decision concerned. It was held that in such circumstances, doctrine of unjust enrichment would not be attracted as the manufacturer has not collected the excise duty from its buyers. 5.1 Further as regards the ruling in the case of CEAT Ltd. relied upon by the Revenue, it is contended ..... X X X X Extracts X X X X X X X X Extracts X X X X
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