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TMI Blog2015 (5) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... w that the price remained constant. They have only stated that Chartered Accountant certificate is not acceptable whereas I find from the impugned order dt. 11.11.2005 that the LAA has dealt the issue in detail and passed an elaborate order extending reasons in para 6 to 8 and came to the conclusion that price of the final product cleared by the sister unit remained constant as the goods was exempted from excise duty - it is clear that respondents opted for provisional assessment for want of cost of raw materials consumed in the manufacture of exempted goods and placed much reliance on the certificate of the Chartered Accountant - respondents paid duty on the intermediate goods which are used in the manufacture of power driven pumps which a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e adjudicating authority has rightly credited the refund to the Consumer Welfare Fund as hit by unjust enrichment clause and submits that the lower appellate authority has relied photocopies of the invoice and there was no evidence to show that the price has not been changed. He also submits that Chartered Accountant certificate submitted is only a stereotype one and should not have been accepted by the lower appellate authority. He relied on the following case law :- 1) Mafatlal Industries Vs UOI 1997 (89) ELT 247 (SC) 2) Godrej Pacific Technology Ltd. Vs CC Mumbai 2003 (157) ELT 410 (Tribunal) 3) Philips Electronics India Ltd. Vs CCE Pune-I 2010 (257) ELT 257 (Tri.-Mumbai) 4. Ld Advocate for the respondent reiterated the find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both the cases is from 1.4.2000 to 31.3.2002. The Revenue has not brought any clear arguments against the impugned order but only stated that there was no clear evidence of enhancement in price and there is no evidence to show that the price remained constant. They have only stated that Chartered Accountant certificate is not acceptable whereas I find from the impugned order dt. 11.11.2005 that the LAA has dealt the issue in detail and passed an elaborate order extending reasons in para 6 to 8 and came to the conclusion that price of the final product cleared by the sister unit remained constant as the goods was exempted from excise duty. Relevant para-8 of the Commissioner (Appeals) order dt. 11.11.2005 is reproduced as under :- The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eligible for sanctioning refund. In an ideal situation where the entire excess duty paid had occasioned adjustment towards the duty short paid in the course of finalisation of assessment and which is acceptable in law, an occasion for refunding the excess duty paid would not have obviously arisen but in effect it would amount to not only sanctioning but also granting the refund. If and when such adjustment is acceptable in law, it is because of the fact that there is no unjust enrichment in the circumstance of the case and as such it is a relevant factor to construe and also logical to conclude that the incidence of duty was not passed on to the buyer. 6. From the above, it is clear that respondents opted for provisional assessment for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T. A 51. In view of the settled position of law, as discussed above, I find no infirmity in the impugned order. The appeal filed by the revenue is rejected. 7. As already discussed above, the respondents paid duty on the intermediate goods which are used in the manufacture of power driven pumps which are exempted from duty. There is no change in the price of the final product. Therefore, by following the above decision (supra), the bar of unjust enrichment is not applicable in the present case and I do not find any infirmity in the impugned orders. Accordingly, both the impugned orders are upheld and Revenue's appeals are rejected. The cross objection filed by respondent gets disposed of. (Dictated and pronounced in open court) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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