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TMI Blog2017 (7) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... lue at which the excess duty was paid at the time of clearance from the factory there is not question of unjust enrichment. The Commissioner (Appeals) has not explicitly remanded the matter to the original authority for re-consideration even if it is presumed that the request of the Revenue for remand of the matter was allowed by the Commissioner (Appeals) it is open for the assessee to challenge the finding of the impugned order, therefore the appeal is very much maintainable before this Tribunal. - E/1451/11 - A/88164/17/SMB - Dated:- 29-6-2017 - Shri Ramesh Nair, Member (Judicial) Ms. Padmavati Patil, Advocate for Appellant Shri Sanjay Hasija, Superintendent (A.R) for respondent ORDER The fact of the case is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell as depot clearance come to the conclusion that how much is short payment and how much is excess payment. Therefore the order of the original authority is just and proper. On the contrary the Commissioner (Appeals) order is not based on any footing, he did not deal with the documents submitted before the original authority that what is the discrepancy in the document accordingly, the finding of the Commissioner (Appeals) is based on assumption and presumption and not based on any discrepancy pointed out in the documents. She submits that the excess duty has arisen only due to the reason that the value at which the excise duty paid at the time of clearance from the factory is more than the value charged to the customer from the depot ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise Rules, 2002 states that- (6) Any amount of refund determined under sub-rule (3) shall be credited to the Fund: Provided that the amount of refund instead of being credited to the fund be paid to the applicant, if such amount is relatable to- (a) The duty of excise paid by the manufacturer if he had not passed on the incidence of such duty to any other person; or (b) The duty of excise borne by the buyer, if he has not passed on the incidence of such duty to any other person. It is clear form a bare reading of the sub-rule that refund on finalization of the provisional assessment could be paid to the respondent only if they had not passed on the incidence of such duty to my other person. The adjudicating au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted by the assessee for the period January, 2009 to December, 2009 and the verification report of the Jurisdictional Range Superintendent. I observe that as the final depot sale price was not ascertainable during the initial removal of goods, which numbered approx. 5000 different products of different grades, from their factory, which ultimately depended on factors like the market forces, competition, quantity off take etc . and hence the actual final depot sale price, could be ascertained only after the goods were sold from the depots, the assessee's request for provisional assessment was accepted and an order for provisional assessment was passed on 17.4.2009 for the period January 2009 to December 2009. I further observe t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee for refund of duty paid in excess in terms of the provisions of sub-rule (5) of Rule 7 read with proviso to Rule 6 of the Central Excise Rules, 2002. As regard interest, it is not applicable in this case as the assessee has paid the duty so short paid, every month which is reflected in the ER-1 returns, filed by them, as reported by the Range Superintendent. . From the above finding of the original authority, it is observed that the original authority has verified that in some cases the price charged from the depot of the appellant is more and sometimes it is less than the value at which the goods were cleared form the factory, therefore there is a short and excess payment of duty. The adjudicating authority has de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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