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TMI Blog2024 (6) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... ort payment as well as excess payment of duty. The proper officer ought to have allowed adjustment of the short paid and excess duty paid as per Rule 7 of the Central Excise Rules, 2002. However, it was not allowed and the appellant was asked to file refund claim for the excess paid amount of Rs.4,55,260/-. Scope of SCN - HELD THAT:- It is observed that the Show Cause Notice was issued for denial of the refund on the ground of time-bar. However, both the authorities below have denied the refund claim on the ground of unjust enrichment. Thus, the submission of the appellant is agreed upon that the impugned order has travelled beyond the Show Cause Notice and therefore, the same is liable to be set aside on this ground alone. Unjust enrichmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as through consignment agents at uniform price (inclusive of excise duty), on FOR destination basis, as per their price list. The appellant offered discounts including year-end discounts as per their trade circulars by way of issuing credit notes. Since the quantum of such discounts could be known subsequent to removal of their goods from their factory, the appellant resorted to provisional assessment as per Rule 7 of the Central Excise Rules, 2002.The provisional assessments for March 2008 and April 2008 were finalized by ORDER OF FINALISATION OF PROVISIONAL ASSESSMENT vide C.No. IV(16)8/Tech/CTC/05/7286 dated 29.09.2008. As per this provisional assessment finalization order, it was found that the appellant had short-paid Rs.25,52,416/- al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de on this ground alone. 6.2. The appellant submits Ld. Commissioner (Appeals) has rejected their refund claim on the sole ground that the appellant had failed to prove that the duty element claimed to have been returned through credit notes to the immediate buyer, had ultimately reached the consumer and thus, the appellate authority held that the claim of refund was hit by the clause of unjust enrichment. In this regard, it is contended that the buyers of the goods were not registered dealers who could not avail CENVAT Credit and pass it on to subsequent buyers/dealers; accordingly, the question of passing on the duty element to any other person, including the ultimate consumer, by the dealers does not arise. 6.3. The appellant further sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly, the appellant prayed for setting aside the impugned order allowing their appeal. 7. The Ld. Authorized Representative for the Revenue reiterated the findings in the impugned order. 8. Heard both sides and perused the appeal documents. 9. We observe that the issue involved in the present appeal is refund arising on account of finalization of provisional assessment. In the present case, upon finalization of provisional assessment vide Order dated 29.09.2008, it was notice that there was short payment as well as excess payment of duty. The proper officer ought to have allowed adjustment of the short paid and excess duty paid as per Rule 7 of the Central Excise Rules, 2002. However, it was not allowed and the appellant was asked to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that unjust enrichment is not applicable to this case. 12. We observe that the appellant has relied upon the decision of the CESTAT in their own case, in the case of UAL-Uttar Pradesh [2015 (329) E.L.T. 622 (Tri. Del.)] wherein under similar circumstances where the refund which was initially rejected on the ground of unjust enrichment was allowed by the appellate authorities, the appeal filed by the Revenue was dismissed and hence, the decision attained finality. 12.1. In the case of Commissioner of Central Excise, Madras v. Addison Co. Ltd. [2016 (339) E.L.T. 177 (S.C.)], it has been categorically held that credit notes are valid instruments for the purpose of passing post-clearance discounts and the assessee would be entitled to file refu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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