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TMI Blog2023 (3) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004 and Circular No. 367/83/97-CX dated 19.12.1997, though it is not directly on the fact in the present case but it establishes that due to temperature variation, the petroleum product gets contracted and due to which there is variation in the quantity of the same quantum of the goods between one temperature and other temperature therefore, the fact that the petroleum product gets contracted is not under dispute. In the present case, it is admitted fact the weight of the product remains unchanged or very minor difference as compared to the difference shown in K15 and KL of a liquid product which obviously varies at a time of a particular temperature and at different time at a different temperature, the appellant have also shown that the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant in the present case. Since there is no loss of the goods at loading and unloading as stage, no duty demand is sustainable accordingly, the duty so paid by the appellant is required to be refunded to the appellant. Unjust enrichment - HELD THAT:- The appellant have accepted that the amount of refund shown as received in their books of accounts therefore, they have satisfied that the incidence of refund amount has not been passed on to any other person. Appeal allowed. - Excise Appeal No.10292 of 2020 - Final Order No. A/10464/2023 - Dated:- 17-3-2023 - MR. RAMESH NAIR, MEMBER (JUDICIAL) Ms. Dimple Gohil, Advocate for the Appellant Shri Vijay Iyengar, Assistant Commissioner (AR) for the Respondent ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure between the months of October, 2018 and November, 2018 which resulted in contraction in the volume of HSD, the same was not on account of any actual or real loss. The appellant paid the excise duty of Rs. 49,26,453/- on the said volume difference of 356.215 KL between the loaded and unloaded HSD, the same was intimated to the jurisdictional Deputy Commissioner. Thereafter, the appellant filed the refund claim for the amount of Rs. 49,26,453/- erroneously paid on the ground that there was no actual loss of quantity of goods. The appellant was issued a show cause notice dated 05.02.2019 proposing rejection of refund claim on the ground that as per para 2(v) of the Commissioner s letter dated 03.10.2018, no remission of duty was permitted. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant is entitle for the refund. She placed reliance on the following judgments:- SHUKLA BROTHERS- 2011 (22) STR 105 (S.C.) RIJHUMAL JIVANDAS- 2010-TIOL-30-SC-CT AMOL INDUSTRIES- 2010 (260) ELT 499 (SC) SHRIKUMAR AGENCY- 2008 (230) ELT 577 (SC) NATIONAL FERTILISERS LTD.- 2009 (239) ELT 501 (COMMR. APPL.) 03. Shri Vijay G. Iyengar, learned Assistant Commissioner (AR) appearing on behalf of revenue reiterates the finding of the impugned order. He submits that there is shortage of quantity between loaded and unloaded HSD therefore, in view of para 2(v) of the Commissioner s order, the appellant is not entitle for the remission of duty in respect such shortage. 04. I have carefully considered the submissions m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Qty. in MT Qty. in K15 Loaded in Vessel 78603.629 64030.568 77061.703 Unloaded in Tanks 78247.414 64029.721 77087.028 Difference between loaded quantity and the quantity unloaded -356.215 0.847 +25.325 From the above table, it can be seen that there is shortage of quantity in KL whereas, quantity in MT is almost same except the variation in 0.847 MT as against the total weight of 64030.568 MT which is negligible. As per the above table, it can be seen that when the total quantity of goods in weight i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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