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TMI Blog2018 (4) TMI 892X X X X Extracts X X X X X X X X Extracts X X X X ..... is not tenable. Appeal allowed - decided in favor of appellant. - E/70001 & 70002/2016-Ex[SM] - Final Order No. 70562-70563/2018 - Dated:- 21-12-2017 - Mr. Anil Choudhary, Member (Judicial) Shri Rahul Agarwal, Advocate for Appellant Shri Sandeep Kumar Singh, Deputy Commissioner (AR), for Respondent ORDER Per: Anil Choudhary The issue in these appeals is that the appellants are a manufacturer of 'Aerated Water' and 'Post Mix Canisters', whether their refund arising upon finalization of the provisional assessment have been rightly denied on the ground of unjust-enrichment. 2. The brief facts of the case are that the appellant removed the 'Post Mix Canisters' from the factory of produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment. It was only on the basis of these documents and evidences that Order-in-Original finagling provisional assessment was passed, determining duty paid in excess. Further, the Assistant Commissioner failed to appreciate that it is clearly evident from the sale invoices submitted with the Department that the prices are higher, on which excise duty have been paid provisionally at the time of stock transfer of post Mix Canisters from plant, depot and/or sister unit, is much higher than the price at which the goods are finally sold to the customers. Further, it is evident on the face of record that the price/ value at which excise duty is paid on provisional basis is much higher than the price actually collected from the customers and thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t goods from the factory and the amount of duty so paid is in excess of, the duty amount recovered from the customers, therefore the excess duty amount as worked out in the said order is actually in excess of the incidence of duty passed on to customers. Hence, it is seen that duty for which refund is filed by the party has not been passed to their customers. Therefore, there is no unjust enrichment in the instant case and I find that refund is admissible to the party. 4. The learned counsel further urges that there being no change in the facts and circumstances in the subsequent year and/or the period under dispute. 5. The learned Commissioner (Appeals) was pleased to uphold the rejection of refund on the ground of unjust-enrichme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble goods are not changed or varied on change of incidence of duty on the manufacture, bar of unjust-enrichment is not applicable. It was submitted that though general rate of duty was enhanced from 10% to 12% w.e.f. 17th March, 2012 yet customer wise selling prices at which Post Mix Canisters/ BIB were ultimately sold from depots remained same. Further, learned Commissioner have observed that item KOBIB20 was sold by the appellant vide invoice dated 02/03/2012 @ ₹ 2800.34 per unit whether the same product was sold vide invoice dated 29/03/2012 @ 3223.76 per unit. Thus, the pleading by the appellant was held to be not considerable. Learned Counsel for the appellant states that the learned Commissioner (Appeals) have disallowed the ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 12 B of the Act is misplaced, as there is no material on record to assume that the appellant have passed on more duty liability then what is indicated in its invoices. Further, I find that under the facts and circumstances, it is evident that the appellant had paid more duty at the time of clearance from the factory to depot, but have ultimately charged and realized less duty on the sale effected from the Depot. Further, I find that the observations of the court below, as regards different discount given to different buyers is misplaced and call for no adverse inference. Further, the appellant-assessee have also filed certificate of Chartered Accountant, certifying that they have not passed on the incidence of duty determined to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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