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TMI Blog2015 (10) TMI 1027X X X X Extracts X X X X X X X X Extracts X X X X ..... discounts, cash discounts, performance incentives, payment of freight and insurance etc. The Asst. Commissioner vide order dated 20.10.2006 sanctioned the refund but credited the same to the consumer welfare fund, as the appellants failed to produce any evidence against unjust enrichment. On appeal, the Commissioner (Appeals) rejected their appeal and upheld the order of the adjudicating authority. 3. The Ld. Advocate for the appellant submits that they are engaged in the manufacture of watches falling under Chapter 99 on behalf of Titan Industries Ltd. They have been allowed various deductions by the principal manufacturer and they opted for provisional assessment. The department finalized the assessment for the year 1996-97 on 10.01.99, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 198) ELT 237 - Tata Motors Ltd. Vs. CCE, Pune-I 2014 (307) ELT 761 She further submits that the period involved in the present appeal is 1996-97 and the provisional assessment was finalized on 11.01.99. Whereas, Rule 9B(5) was amended only from 25.6.99 wherein the provisions of Section 11 B(2) was made applicable for provisional assessment. Since the period of provisional assessment is prior to 25.6.99, unjust enrichment clause is not applicable in their case. 4. The Ld. AR reiterates the findings of the adjudicating authority and OIA. He further submits that unjust enrichment is applicable in their case as Section 11B came into effect from 01.08.98 only Rule 9(B) was amended on 25.06.99. By virtue of Section 11B where the unjust enrichm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing the discounts and these discounts are pre-determined and already known to the trade before removal of the goods. This fact was discussed by the Commissioner (Appeals) in their own case in the earlier order 189/03 dated 15.10.03. Para 6.3 is reproduced below:- "6.3 On going through the records and documents produced, it is evident that the Additional Trade Discount (AT Discount-AV Discount), cash discount and performance incentive are available to all dealers/franchisees as per the terms of Trade and known prior to the removal of goods . Hence, these discounts satisfy all the conditions stipulated in the Apex Court decision. Further, these discounts are allowable as per the decision of High Court at Bombay in the case of Goodlass Ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of unjust enrichment is not applicable but the said decision has been challenged before the Hon'ble Apex Court and there is no stay of the operation of decision of the Hon'ble High Court of Madras. Therefore, the decision of the Hon'ble High Court is still in force. I further gone through the case law relied upon by the learned AR, all these cases have been considered by the Hon'ble High Court of Andhra Pradesh and thereafter the Hon'ble High Court relying on the decision of Addision & Co. (supra) held that in a situation, the entitlement of the discount is already known to the buyer, in such a situation bar of unjust enrichment is not applicable. Apart from that in this case the appellant has shown the amount of duty re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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