2013 (11) TMI 485

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....56 (Tribunal)] wherein the appeal filed by the assessee has been allowed and it is held that assessee is entitled to refund as claimed in the application. 2. The material facts of the case leading up to this appeal are as follows : An application was filed under Section 11-B of the Central Excise Act, 1944 (hereinafter called the Act') seeking for refund of Rs. 45,468/- averring that, the assessee had paid the excise duty wrongly in respect of cotton yarn cleared on the strength of C.T.E certificate. It is the case of the assessee that refund is claim on account of payment of duty by mistake as the goods were intended to be removed under. C.T. 3 where no payment of duty is required. But the assessee has cleared the same under pay....

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....v. Triveni Glass Pvt. Ltd. [2006 (72) RLT 353], the customer had issued CT3 certificate whicli clearly indicated that they are not going to bear the burden of duty and the duty burden had been borne by the assessee and therefore, they are eligible for refund in terms of the cited judgments. Accordingly, CESTAT allowed the appeal with consequential relief. Being aggrieved by the same, this appeal is filed by the revenue. 3. The appeal was admitted for determination of the following substantial question of law : "Whether the transaction is on provisionally and amounts are settled in the end and higher payment made by the assessee and then in that case whether the assessee is eligible for refund? 4. We have heard the learned....

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....the part of the assessee to pay any excise duty in view of the issuance of the CT-3 certificate and excess duty had been paid by mistake and therefore, the question of price adjustment does not arise and refund has rightly been ordered by the CESTAT. In support of his contention, he has relied upon the subsequent decision of the Hon'ble Supreme Court in Commissioner of Central Excise v. International Auto Ltd. [2010 (250) E.L.T. 3 (S.C.)] wherein the Hon'ble Supreme Court has observed as follows : "In our view, with the entire change in the Scheme of recovery of duty under the Act, particularly after insertion of Act 14 of 2001 and Act 32 of 2003, the judgment of this Court in the case of M.R.F. Limited [supra] would not apply. That judg....

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....nly, the refund was ordered holding that conditions of Section 11B of the Act have been satisfied. 7. We have given careful consideration to the contentions of learned counsel appearing for the parties and scrutinized the material on record. 8. The material on record would clearly show that CT-3 certificate had been obtained and therefore there was no liability on the part of the assessee to pay excise duty. However, excise duty of Rs. 45,468/- was paid under mistake and there was no burden on the part of the consignee to pay the duty and therefore, the burden of paying duty has been borne by the assessee and in fact, there is no liability on him to pay the duty. The assessing officer and the first appellate authority have r....