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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 ..... re no merit in the impugned order which is set aside - appeal allowed. - HON BLE MR C J MATHEW , MEMBER ( TECHNICAL ) And HON BLE MR AJAY SHARMA , MEMBER ( JUDICIAL ) Shri Mehul Jivani , Chartered Accountant for the appellant Shri Xavier Mascarenhas , Superintendent ( AR ) for the respondent ORDER PER : C J MATHEW The dispute in this appeal lies within the narrow compass of denial of access to eligible refund of duties of central excise, arising from finalization of provisional assessment for clearances effected from April 2011 to June 2011, by invoking the bar of unjust enrichment in section 11B of Central Excise Act, 1944. 2. The appellant, M/s Savita Oil Technologies Ltd is a manufacturer of lube oil among several other products effecting sale through clearing forwarding (C F) agents and their own depots at several places. As the price at which an independent sale takes place was not available at the time of clearance, the appellant had adopted the practice of provisional 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... July 2019 in excise appeal no.1722, 1722 of 2011] in Savita Oil Technologies Pvt Ltd v. Commissioner of Central Excise, Belapur disposing off challenge to order [order-in-appeal no. PKS/97-98/Bel/2011-12 dated 6th September 2011] of Commissioner of Central Excise (Appeals), Belapur. 5. We have heard Learned Authorized Representative and perused the records. It is seen that several orders of the Tribunal have held that such refunds cannot be withheld on the ground of unjust enrichment. Furthermore, these were not only accepted but also those in which first appellate authority followed the decision of the Tribunal were. 6. For a detailed exposition of the stand adopted by the Tribunal, we may gainfully rely upon 4.2 We find that for subsequent period as well as earlier period, the issue has been decided in favour in appellant's own case and the same has been accepted by department: For the subsequent periods i.e. from December 2011 to December 2012 the refund was rejected on the identical ground by the Assistant Commissioner. The appellant had filed the appeal before Commissioner (Appeals) and Commissioner (Appeals) has set aside the order of Assistant Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal No. Belapur/Bel-IV/R-I/SAVITA/AC/HP/15-16 dated 30.07.2016 passed by the Deputy Commissioner for granting the said refund, wherein he has noted that OrderIn-Appeal No. CD/112-115/Bel/15 dated 12.02.2015 passed by the Commissioner (Appeals) has been accepted by the Committee of Commissioner on 16.06.2015. Even for the period 2010-11 for the other unit, refund claim has been adjudged in their favour as reported in M/s. Savita Oil Technologies Ltd 2017-TIOL-279-Cestat-Mum, wherein following has been held: 5. On the issue of time-bar, I find that the refund is in consequence of finalisation of provisional assessment. Any duty collected in excess during the pendency of finalisation of provisional assessment is in excess of that authorized by law and must, perforce, be returned to the assessee. There is no requirement for a separate application for refund. The original authority erred in directing that a claim be filed in consequence to finalisation and the first appellate authority erred in concurring with the finding that a part of the claim was barred by limitation. 6. It is also seen that that the appellant has produced a certificate of Chartered Accountant that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e paid in terms of Section 4(b) read with Valuation Rules. The time of removal in respect of goods removed from the place of removal shall be deemed to be the time at which such goods are cleared from the factory. When the coated abrasives are removed from the factory to the depot, duty liability has to be discharged and in terms of law value to be adopted is the price discount is given to the prevailing in the depot at the time of clearance from the factory. In terms of the declaration made by the respondents, it is seen that normally 17.5% discount is given to the dealers in respect of the goods purchased from the depot. Moreover at the time stock transfer from the factory to the depot, the appellants would not be knowing that a particular item would be sold to an industrial consumer. Further, the percentage of sales to industrial consumer from the depot is very meagre only 0.5%. 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 actuall ..... X X X X Extracts X X X X X X X X Extracts X X X X
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