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TMI Blog2023 (4) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant failed to co-relate the goods cleared from the factory and removal from the depot and therefore, failed to establish that the question of duty has not been passed to any other person - once it is established that the goods were sold from the depot to the customers at a lower price as is the case in the present case then it is clear that the higher duty has not been collected by the appellant and hence there is no unjust enrichment. The Ld. Commissioner (Appeals) has travelled beyond the remand order passed by the Tribunal. In remand order, the Ld. Commissioner was only to consider the issue of unjust enrichment whereas the Ld. Commissioner has gone beyond the remand order to hold that Rule 7 of the Central Excise Valuation Rules, 2000 has not been followed. The impugned order is not sustainable in law - Appeal allowed. - Excise Appeal No. 2929-2930 Of 2009 - A/60098-60099/2023 - Dated:- 18-4-2023 - Mr. S. S. GARG, MEMBER (JUDICIAL) AND Mr. P. ANJANI KUMAR, MEMBER (TECHNICAL) Ms. Krati Singh, Advocate for the Appellant Shri Manoj Nayyar, Ms. Geetika, Authorised Representatives for the Respondent ORDER These two appeals are directed agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iv) Pursuant to the order of the Tribunal, the Ld. Commissioner (Appeals) allowed the Revenue s appeal vide impugned order dated 31.08.2009. (v) Aggrieved by the said order dated 31.08.2009, the appellant filed appeals before the Tribunal and the Tribunal vide order dated 02.08.2017 dismissed the appeals of the appellant. (vi) Aggrieved by the said order of the Tribunal, the appellant filed appeals before the Hon ble Punjab and Haryana High and the Hon ble High Court vide order dated 15.01.2020 set-aside the Tribunal s order dated 02.08.2017 only on the factual error that there was no verification report examining the issue of unjust enrichment, as was observed in the order of the Tribunal. (vii) Thereafter, the matter was remanded back to the Tribunal by the Hon ble High Court for deciding the issue afresh in accordance with law. 3. Heard both the parties and perused the case records. 4. Ld. Counsel appearing on behalf of the appellant submitted that the appellant has discharged duty at a higher value while clearing the goods from the factory to depots whereas ultimately such goods have been sold to the customers at a lower price and accordingly, the lower author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od, the appellant has been granted refund of the excess duty paid. The appellant had placed on record the following orders passed by the adjudicating authority granting the refund for the previous period:- Order in Original No. 172/CE/2004 dated 27.08.2004 Order in Original No. 14/CE/2005-06 dated 21.04.2005 Order in Original No. 153/R/2004-05 dated 02.02.2006 Order in Original No. 57/R/2005-06 dated 10.08.2006 She also submitted that these orders granting refunds have attained finality. She further argued that the department cannot take contrary stand in proceedings on the same issue for the same assessee. In this regard, the appellant relied upon the following decisions;- Alufit India Pvt. Ltd. vs. Commissioner of Customs, 2022 (4) TMI 1258 - CESTAT Bangalore J.B. Construction vs. CCE, 2022 (5) TMI 425 - CESTAT Mumbai A Infrastructure Ltd. vs. Commissioner, CGST, 2021 (9) TMI 141 - CESTAT New Delhi SRF Ltd. vs. Commissioner, CE ST, 2021 (8) TMI 696 - CESTAT New Delhi The Ld. Counsel further submitted that the Tribunal vide its order dated 20.01.2009 remanded the matter to Commissioner (Appeals) to examine the evidence pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tvs Electronics Ltd. vs. Commissioner of Central Excise, Chennai 2012 (286) ELT 258 (Tri.- Chennai) Subsequently, the Ld. DR also filed additional submissions whereby she has submitted that no refund claim is maintainable unless the order of assessment or self assessment is modified in accordance with law and for this issue, she relied upon the following decisions:- ITC Ltd. vs. CCE Kolkata 2019 (368) ELT 216 (S.C.) larger bench-dated 18.09.2019 Viavi Solutions India Pvt. Ltd. vs. CCE-Gurgaon-I vide Interim Order No. 111/2021 dated 08.10.2021 MRF vs. CCE, Madras reported in 1997 (92) ELT 309 (S.C.) Maurya Udyog Ltd. vs. CCE-2007 (207) ELT 31 (P H) She also submitted that there is no estoppel in tax matters and for this submission, she relied upon the following judgements:- Plasmac Machine Mfg. Co. Pvt. Ltd. vs. Collector of Central Excise 1991 (51) ELT 161 (S.C.) Nowranglal Agarwala vs. State of Orissa (AIR 1965 Ori. 44) Continental Exporters vs. Commissioner of Customs, Bangalore 2018 (364) ELT 109 (Tri.-Bang.) C.K. Gangadharan vs. Commissioner of Income Tax, Cochin 2008 (228) ELT 497 (S.C.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld as under:- 4. After hearing both the sides and on perusal of the records we find that there is no dispute that the appellants opted provisional assessment for selling of the goods from depot. Rule 7 of Central Excise (Valuation) Rules, 2000 provides that where the excisable goods were not sold by the assessee at the time and place of removal but were transferred to depot, from where the excisable goods to be sold after their clearance from the factory, the value shall be the normal transaction value of such goods sold from such other place at or about the same time and, where such goods are not sold at or about the same time nearest time of removal of goods under assessment. Thus, if goods are cleared from factory today to a depot, the duty would be payable on the price prevailing at the depot today. The expression such goods in Rule 7 is significant. For the purpose of assessment, the clearance of goods from factory to depot would deemed to be such goods from depot. In view of that for the purpose of unjust enrichment, price of such goods prevailing at depot to be adopted. 5. On perusal of the Adjudication order we find that the original authority sanctioned the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . However, as rightly observed by the Commissioner (Appeals) once the goods are cleared from the factory to the depot on payment of duty on the basis of a price prevailing at the depot, at the time of removal from the factory there is no need to chase the goods and to see at what price the same are actually sold. Therefore, he has rightly set aside the orders of the lower authority demanding duty. We do not find any reason to interfere with the orders of the Commissioner. Therefore, we dismiss Revenue s appeals and uphold the Orders-in-Appeal. The appeals and cross-objections are disposed of in the above terms. 7. The decisions cited by the learned D.R. for applicability of unjust enrichment are not relevant in this case, as the appellants fulfilled the conditions of unjust enrichment by showing that the depot price prevailing at the relevant time. 9. We also find that once it is established that the goods were sold from the depot to the customers at a lower price as is the case in the present case then it is clear that the higher duty has not been collected by the appellant and hence there is no unjust enrichment. This issue has also been considered in the cases relie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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