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TMI Blog2016 (12) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... n materialises only when the duty involved has been collected from buyer and as in the case the duty collected is as per final bills made subsequent to final assessment order, the duty reimbursed against the final bills only can be said to have passed on and not the duty indicated in invoices and paid by appellant to exchequer making the payment on provisional basis as per the provisional assessment order made by authority. In above terms the appellant is entitled for the refund of excess duty paid provisionally at the time of clearance of goods. Refund allowed in cash - appeal dismissed - decided against Revenue. - Excise Appeal No. 2963 of 2012 - A/55750/2016-EX[DB] - Dated:- 8-12-2016 - Dr. Satish Chandra, President And Mr. V. Padm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the grounds of appeal filed by the Revenue. 3. At the time of finalisation of provisional assessment, the duty paid in excess is to be adjusted against the excise duty short paid by the assessee. After this adjustment, the final duty payable or refund eligible is to be arrived at. In the present case, this process has resulted in excess duty paid to the extent of ₹ 14,43,333/- which has become due to the assessee as refund. It is fairly well settled that the test of unjust enrichment prescribed in Section 11B of the Central Excise Act, 1944, will be applicable only to the net adjusted duty arising as refund and not to the duty passed on in each invoice. Such a view has been upheld by the Hon ble High Court of Karnataka in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed on the incidence of duty whose refund is claimed by them. In would also like to mentioned that the authority while passing the order has not correctly followed the word duty passed on here the word is duty and not Cenvat Credit and further words duty passed on materialises only when the duty involved has been collected from buyer and as in the case the duty collected is as per final bills made subsequent to final assessment order, the duty reimbursed against the final bills only can be said to have passed on and not the duty indicated in invoices and paid by appellant to exchequer making the payment on provisional basis as per the provisional assessment order made by authority. In above terms also the appellant is entitled for t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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