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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 ..... ssment. It was found that in some cases there are short payment of duty which the appellant have paid the short paid amount. As regard the excess paid duty amounting to Rs. 3,84,361/- the assessing officer sanctioned the refund by way of Cenvat Credit in their cenvat account. The Revenue filed appeal before the Commissioner (Appeals) only for the portion of refund sanctioned by the adjudicating authority. The Commissioner (Appeals) allowed the appeal of the Revenue therefore the appellant is before me. 2. Ms. Padmavati Patil, Ld. Counsel appearing on behalf of the appellant submits that the Commissioner (Appeal) has set aside the original order only on the ground that the sale invoices issued from the depot and other relevant record was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhopal 2009 (247) E.L.T. 708 (Tri.-Del.). 3. Shri Sanjay Hasija Ld. Superintendent (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that in the appeal filed before the Commissioner (Appeals), the Revenue sought to remand the matter to the original authority, accordingly the appeal was allowed therefore the matter stand remanded to the original authority. Hence, the appeal is not maintainable before this Tribunal. He further submits that the original authority has allowed the refund only on the basis of the statement given by the appellant however all other records were not verified therefore the matter needs to be remanded. 4. I have carefully considered the submissions made by both the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise monthly computer generated differential duty statement for the said period-and informed that they had paid excess duty of Rs. 3,84,361/- on goods cleared to various depots. The sale invoices issued from the depots and other relevant record was not verified by the assessing authority before concluding on the basis of assumption and presumption that duty was being recovered from the customers at the depots on the bill value and the question of unjust enrichment did not arise. Accordingly the impugned order is set aside and the appeal is allowed". From the above finding, it is observed that the Commissioner (Appeals) in his finding mentioned that the sale invoices issued from depot and other relevant record was not verified by the assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the value at which the goods, are cleared from the factory resulting in short/excess payment of duty. I also find that there is short payment of duty to the tune of Rs. 4,91,101/- during January 2009 to December 2009. The Jurisdictional Range Superintendent has reported that the short payment amounting to Rs. 4,91,101/- has been paid every month which is reflected in the ER-1 returns filed by them. I find that the short paid amount has been paid by them as their customers have availed Cenvat credit of the duty paid on higher prices. The short paid amount but having paid subsequently, need to be appropriated. I observe that there is also excess payment of duty by the assessee to the tune of Rs. 3,84,361/- and the assessee have asked to ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Ld. Commissioner (Appeals) despite detailed verification was done by the original authority and also which is based on the report from the Range Superintendent, given finding that the sale invoice and relevant records were not verified which is absolutely incorrect on the face of the finding in the adjudication order. In the judgments cited by the Ld. Counsel it is settled that in case of sale of the goods through depot after stock transfer when the value from the depot is charged than the value at which the excess duty was paid at the time of clearance from the factory there is not question of unjust enrichment. I therefore do not agree with the finding of the impugned order. As regard the issue raised by the Ld. AR the appeal is not m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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