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TMI Blog2023 (12) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... al assessment' at estimated price for payment of duty and, subsequent to actual sale from the downstream premises, the appropriate duty liability was discharged in full on finalization of assessment as provided for in rule 7 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000. 3. For the disputed period, the jurisdictional central excise authority determined that some of the clearances had been effected on payment of excess duty of Rs. 4,01,506 while, for others, Rs. 10,388 had been short-paid. The resultant claim for refund of the excess paid which was sanctioned but appropriated to the 'Fund' as prescribed in section 11B of Central Excise Act, 1944, on the ground that non-inclusion of 'duties of central excise' in the invoice issued by the downstream entity and that certificate of chartered account unacceptable, for failure to overcome the bar against release of refund. The upholding of the denial in order [order-in-appeal no. SDK/88/Bel/2013-14 dated 27th September 2013] of Commissioner of Central Excise (Appeals), Mumbai-III was carried to the Tribunal and remanded back to the first appellate authority for passing detailed order which is now in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The appellant had filed the appeal before Commissioner (Appeals) and Commissioner (Appeals) has set aside the order of Assistant Commissioner and allowed the refund vide Order- In-Appeal No. CD/116/Bel/2015 dated 03.02.2015; Order-In-Appeal No. CD/108/Bel/2015 dated 03.02.2015 and Order-In-Appeal No. CD/105/Bel/2015 dated 03.02.2015. (Copy of the said order is attached in case law compilation at sr.no.2- page 12 to 33). The said order has been accepted by the department, the sane can be evidencing from second last para on internal page 4 of the Order- In-Original No. MK/69-71/DC/Bel-II/SAVITA/15-16 dated 17.06.2015 (Copy of the said order is attached in case law compilation at sr.no.2- page 34 to 38) passed by the Deputy Commissioner for granting the said refund, wherein he has noted that said Order-In-Appeals passed by the Commissioner (Appeals) has been accepted by the Committee of Commissioner on 16.06.2015. For earlier period October 2009 to March 2010 the refund was rejected on the identical ground by the Assistant Commissioner and Commissioner (Appeals). The same was set aside and refund was allowed by the CESTAT vide Order No. A/86656- 86657/2019 dated 30/07/2019 arising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by limitation. 6. It is also seen that that the appellant has produced a certificate of Chartered Accountant that the amount receivable has been shown in the accounts as 'receivable' and this is sufficient evidence that the incidence of duty has not been passed on." 4.3 As the issue has been considered by the revenue authorities for the past and previous period in the appellant own case on the identical issue and allowed in favour of the appellant and the orders have been accepted by the same principles should be adopted in the present case in view of the decisions as follows: i. Birla Corporation Ltd. [2005 (186) E.L.T. 266 (S.C.)] ii. Jain Vanguard Polybutlene Ltd [2010 (256) E.L.T. 523 (Bom.)] iii. Sunbel Alloys Co. Of India Ltd [2015 (316) E.L.T. 353 (Bom.)] 4.4 In case of Nahar Spinning and Weaving Mills Ltd. [2009 (247) ELT 708 (T-Del)] following has been observed : 5. On perusal of the Adjudication order we find that the original authority sanctioned the refund claim holding that "provisional assessment for the period in question was finalized on the basis of price prevailing at depot on the day the goods were cleared from the factory. The price prevail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 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. 4.5 The appellants submitted that at the time of verification of the sales invoices raised ex C & F Depot for finalization of provisional assessments, it has been verified by the verifying officer the sales invoices raised ex C & F depots do not show the duty element separately. In case of N G Thakkar 2012-TIOL280-HC-MUM-CX following has been held: 9. The claim of the assessee that the upward revision in the prices of the compounded asafoetida cleared during the relevant period was not on account of the inclusion of the central excise du ..... X X X X Extracts X X X X X X X X Extracts X X X X
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