9911796707
TMI Blog2023 (3) TMI 833X X X X Extracts X X X X X X X X Extracts X X X X ..... multiple locations in India. The Lubricating Oil is removed to its depot on payment of Central Excise duty following the provisions of Rule 7 of the Central Excise Valuation Rules, 2002. On the basis of actual sale at depot comparable statements was made for computation of duty between the value adopted for clearance of goods from the factory and the value at which it was sold from depot and on the computation it was found that the appellant have paid the excess excise duty amount of Rs. 1,19,802/-. The said excess payment was on account of various discounts passed on from the depot as under: a) Special Discount b) Cash Discount c) Trade Discount d) Free oil Discount (quantity discount) 1.2 The above discounts were known to the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the refund claim merely on the ground that the appellant have not opted for the provisional assessment. He submits that this is not an allegation made in the show cause notice, therefore, on this ground refund could not have been rejected. He in support that the order should not travel beyond the scope of the show cause notice, relied on the following judgments:- * Ballarpur Industries Ltd - 2007 (215) ELT 489 (SC) * ST Electricals Pvt. Ltd. - 2019 (20) GSTL 273 (Tri.- Mumbai) * Dow Chemicals International Pvt. Ltd - 2019 (370) ELT 1302 (Tri.- Ahmd) 2.1 Without prejudice, he also submits that the refund of excess payment of duty cannot be rejected merely for the reason that assessee has not opted for the provisional assessment. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He submits that the issue has been settled in the appellant's own case and in their sister unit . he further submits that the judgment relied upon by the Revenue in the case of M/s. MRF Limited - 1997 (92) ELT -309 (SC) is clearly distinguishable and hence not applicable. 3. Shri Rajesh K Agarwal, Learned Superintendent (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order . 4. We have carefully considered the submission made by both sides and perused the records. We find that the appellant have made excess payment of duty on account of discount. The discount was given at the time of sale of the goods from the depot. There is no dispute about the nature and quantum of discount. The removal of goods from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ya Pradesh in the case of M/s. Godrej Consumers Products Ltd - 2019 (5) TMI 222 that merely because the appellant have not followed the provisional assessment, the methodology adopted for adjustment of excess payment of duty cannot be questioned. Therefore, even though the appellant have not opted for the provisional assessment , the admitted excess payment of duty has to be refunded to them. 4.2 As regard the principle of unjust enrichment the appellant have submitted the Chartered Accountant Certificate and JV Entries whereby it is established that the incidence of duty for which the refund was sought for has not been passed on. 5. In view of our discussion and finding the appellant is prima facie entitled for the refund subject to veri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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