9911796707
TMI Blog2023 (3) TMI 833X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no dispute about the nature and quantum of discount. The removal of goods from the factory is on presumptive value and the transaction value is finalized only at the time of sale of goods from the depot. Therefore, the discount given by the appellant at the time of sale of goods from the depot is legal and correct and the same shall not be includible in the assessable value. Accordingly, if there is any excess payment of duty in comparison with the value at which the goods were cleared from the factory and the same goods sold from the depot , the appellant is primafacie entitled for the refund. Non-opting for the provisional assessment - HELD THAT:- Firstly the same was not made charge in the show cause notice therefore the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant is prima facie entitled for the refund subject to verification of the documents - the impugned order set aside and matter remanded to the Adjudicating Authority for passing a fresh order - appeal allowed by way of remand. - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri Manoj Chauhan, Chartered Accountant for the Appellant Shri Rajesh K Agarwal, Superintendent (AR) for the Respondent ORDER The brief facts of the case are that the appellants are manufacturer of lubricating oil falling under Central Excise Tariff Heading 27101980 of the Central Excise Tariff Act, 1975 at its factory located at Silvassa. The appellant have various depots located in multiple locations in India. The Lubr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icating Authority vide Order-In- Original rejected the refund claim on the ground that the appellant have not opted for provisional assessment. Being aggrieved by the Order-In- Original, the appellant filed the appeal before the Commissioner (Appeals) who vide Order-In-Appeal dated 17.11.2012 rejected the appeal on the ground that the appellant have not opted for provisional assessment and documents relating to cash discount, quantity discount , co-relation of goods removed from the factory and depot was not provided. Therefore, the present appeal filed by the appellant. 2. Shri Manoj Chauhan, Learned Chartered Accountant appearing on behalf of the Appellant submits that both the lower authorities have rejected the refund claim merely on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgment of this Tribunal in the case of M/s. Nahar SPG. WVG. Mills Ltd 2009 (247) ELT 708 (Tri.- Del). 2.3 He further submits that in case of present refund, principle of unjust enrichment does not apply. However, he submitted that the appellant have submitted the Chartered Accountant Certificate and JV entries substantiating the incidence of duty was not passed on by the appellant to any other person. He also referred to one Order-In-Original No. Belapur/Bel-IV/R-l/01/SAVITA/AC/HP/15-16 dated 30.07.2015 passed by the Assistant Commissioner C. Ex. Belapur-lV Division, Belapur Commisssionerate in identical case of another unit of the appellant wherein held that the principle of unjust enrichment does not apply. He submits that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r travels beyond the scope of show cause notice which is not permissible under the law as settled in various judgments cited by the appellant. Secondly, merely because the appellant has not opted for the provisional assessment the legal provision for valuation will not get altered. The duty is payable in accordance with the Section 4 of Central Excise Valuation Rules , 2000. In terms of Rule 7 the excise duty is payable at on the value at the time of sale of goods from depot after removal from the factory. Therefore, on the differential excise duty due to the difference between the clearance value from the factory and the sale value from the depot is refundable to the appellant. It is settled by the Hon ble High Court of Madhya Pradesh in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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