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TMI Blog2020 (10) TMI 471X X X X Extracts X X X X X X X X Extracts X X X X ..... iff Act, 1985. During the disputed period i.e. 2008-09, the appellant was not in a position to ascertain the assessable value of the goods manufactured by it and accordingly, opted for provisional assessment as per Rule 7 of the erstwhile Central Excise Rules, 1944, which was acceded to by the jurisdictional central excise authorities. The provisional assessment was finalized on the basis of the information furnished by the appellant. On the basis of final assessment order passed by the central excise department, the appellant had filed the application, claiming refund of excess central excise duty paid by it during the course of provisional assessment of the goods. The refund application filed by the appellant was considered favourably by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Ltd. Vs. Commissioner of Central Excise, Jaipur-II, 2018 (359) E.L.T. 415 (Tri.-Del.)], Jindal Steel & Power Ltd. Vs. Commr. of C.Ex. & Service Tax, Raipur, 2017 (348) E.L.T. 367 (Tri.-Del.), Salve Pharmaceuticals Pvt. Ltd. Vs. Commissioner of C. Ex. Delhi-I, 2016 (339) E.L.T. 297 (Tri.-Del.) and Saint Gobin Gyproc India Ltd. Vs. Commissioner of C.Ex., Delhi-III, 2016 (335) E.L.T. 120 (Tri.- Del.) to state that when the refund amount has been reflected in the balance sheet as claims receivable from the department, the same amount should be credited to the account of the assessee and should not be transferred to the Consumer Welfare Fund. 4. On the other hand, the learned AR appearing for the Revenue reiterates the findings recorded in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision in respect of bar of unjust enrichment. There is in fact no need to take recourse of sub-section (2) of Section 11B of CEA, 1944, for transferring the refund to Consumer Welfare Fund. Due to this explicit provision in present rule 7, the decision of Hon'ble Supreme Court in the case of Mafatlal is of no use to the appellant. In the present case, it is already concluded that the appellant, though may have passed on the incidence of excise duty to the dealers, but same is not passed on to ultimate consumer, the refund arising out of provisional assessment is required to be credited to Consumer Welfare Fund in terms of sub-rule (6) of Rule 7 as the appellant failed to comply with condition (a) of proviso to said sub-rule (6) of Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f "loans and advances", clearly depicts that the incidence of excess paid duty amount has all along been borne by the appellant. Therefore, under the circumstances, it cannot be said that the element of excess paid central excise duty had been transferred to the dealers and for that purpose, the appellant should not be entitled for the benefit of refund and the amount in question should be transferred to the Consumer Welfare Fund. I find that in an identical situation, this Tribunal in the case of appellant's (other unit) (supra) has remanded the matter to the original authority to examine the issue of crediting the amount of refund to the Consumer Welfare Fund. Pursuant to the remand direction of the Tribunal vide order dated 13.06.2016, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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