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TMI Blog2019 (3) TMI 1091X X X X Extracts X X X X X X X X Extracts X X X X ..... e aspect of Rule 7 of the Central Excise Valuation Rules, 2000, etc., is beyond the scope of remand. Further, there has been no Show Cause Notice issued till now by the Department for recovery of the erroneous refund. In such circumstances, the entire exercise of analyzation by a further remand, as requested by the Ld. AR for the Department, is futile. The sanction of refund by the adjudicating authority is right and proper - appeal allowed - decided in favor of appellant. - Appeal No.: E/256/2011 - Final Order No. 40526/2019 - Dated:- 18-3-2019 - Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri. Raghavan Ramabadran, Advocate for the Appellant Shri. B. Balamurugan, AC (AR) for the Respondent ORDER Per Bench : Brief facts are that the appellants are engaged in the manufacture of printers and assemblies thereof and are registered with the Central Excise Department. They filed a refund claim for ₹ 13,23,279/- in respect of goods cleared to their Kit Store (depot) stating that the value adopted at the time of removal from the factory gate was higher than the value prevailing at or about the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cause Notice dated 14.09.2005 was issued proposing to deny the refund claim on the ground that the refund claim is not in accordance with the provisions of Rule 7 of the Central Excise Valuation Rules, 2000. Prior to adjudication of the Notice, the appellant revised their refund claim as per the provisions of Rule 7. The claim of refund as per the revised computation worked out to ₹ 16,65,845/- i.e. higher than the initial claim of ₹ 13,23,279/-. The lower adjudicating authority vide Order-in-Original No. 35/2005 dated 31.10.2005 did not consider the revised refund claim and denied the original refund claim for ₹ 13,23,279/- on the ground that the workings were not in accordance with Rule 7. Against this order, the appellant preferred an appeal before the Commissioner (Appeals) who vide Order-in-Appeal No. 56/2007 dated 31.05.2007 remanded the matter back to the Original Authority with the limited scope of : a) Examining the aspect that the appellant reduced the selling price of assemblies to be charged at Kit Stores with effect from 20.01.2004 and they continued to adopt the then prevailing selling price and effected clearances of assemblies to Kit Stores in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Order has gone beyond the scope of remand to deny the refund on the ground that the appellant has not satisfied Rule 7. Therefore the appellant submits that the impugned Order is beyond the scope of remand and on such score, merits to be set aside. 2.3 The appellant submits that the reduction in prices of the assemblies happened at the Kit Stores on 20.01.205. Accordingly, the appellant filed a refund claim for all clearances made from the factory on or after 20.01.2005. This is evident from the refund claim worksheet, both original and revised, filed by the appellant with the Department. Therefore, the finding in the impugned Order is factually incorrect and on this score also, merits to be set aside. 2.4 The appellant has availed the refund as Credit consequent to the order of the Ld. Assistant Commissioner dated 06.01.2009. The Department has not issued a Show Cause Notice seeking to recover the alleged erroneously granted refund. It is a settled principle that an appeal under Section 35E and a Show Cause Notice to recover the erroneously granted refund under Section 11A will have to be cumulatively satisfied in order to recover the refund sanctioned. In this regard rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant filed the refund at the initial stage and the revised amount within the time limit prescribed under Section 11AB of the Central Excise Act, 1944. Accordingly, the case is remanded back to the Original Authority for deciding the matter afresh in aforesaid terms in accordance with law, by observing the principles of natural justice. Needless to say , the question of unjust enrichment should also be examined in case the refund is found to be admissible. The appellant shall render all cooperation to the Department and furnish all required documents to the lower adjudicating authority for deciding the question of unjust enrichment. Accordingly, the impugned order in original is set aside and the Department s appeal is allowed by way of remand. (Emphasis supplied) 8.2 The two points of remand as examined by the adjudicating authority in Order-in-Original dated 06.01.2009 and the discussions regarding these points are reproduced as under : 16. The Appellate Authority, the Commissioner (Appeals) has, while remanding the case, directed that : (i) The Original Authority to examine the aspect that the appellant reduced the selling price of assemblies to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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