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TMI Blog2016 (9) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... ded against the appellant - Excise CO No.E/CO/185/2008-EX [DB] in Excise Appeal No.E/3201/2007-EX [DB] - FINAL ORDER NO. 53017/2016 - Dated:- 9-3-2016 - MR. S.K. Mohanty, Member (Judicial) and Mr. R.K. Singh, Member (Technical) Present for the Appellant : Mr. Sameer Agarwal, Advocate Present for the Respondent: Mr. R.K. Grover, D.R. ORDER Appeal has been filed against Order in Appeal dated 21.08.2007 in terms of which the Commissioner (Appeals) (while deciding the assessee s appeal against Order- in- Original dated 18.05.2007 rejecting the appellants refund claim of ₹ 1,24,88,119/-) essentially held that the Original Adjudicating Authority rejected the refund claim on 3 grounds:- i) That the assessable val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cost of production of their goods for the purpose of discharging duty of excise. On the contrary they got waived the penalty imposed upon them on the plea that they have already paid differential duty on this count and started paying duty of excise by taking 110% or 115% of the cost of production. Thus, the issue involved in the subject refund claim has already attained finality in January, 2004 and that filing of such refund claim is not proper, bad in law and liable for rejection. (ii) The principle of unjust enrichment is duly invocable in this case as the appellant passed on the burden to its customers as the duty was factored with the cost of its services and (iii) The refund was also time barred as the duty of which r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to pay duty by adding 15% or 10% of the cost of production to arrive at the assessable value tantamounts to re-opening an already settled issue in their own case in spite of the fact that that issue is no longer res integra. 7. Once it was finally settled by a quasi-judicial process in the appellants own case that the assessable value of the impugned goods was to be arrived at by adding 10%/15% to the cost of production, the very basis of claiming the impugned refund crumbles rendering the appeal unsustainable. Therefore, it is no longer necessary to swell at the other contentions. 8. In the light of the foregoing, the appeal is dismissed. [Dictated and pronounced in the open Court) - - TaxTMI - TMITax - Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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