2017 (3) TMI 292

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.... clearance the amount of discount to be passed on is known only after clearances since the quantity sold by a dealer etc., can be arrived only after a particular period. Therefore, appellant calculates the amount of discounts to be passed on to the dealers at the end of every month and issues credit notes to that extent to the dealers. On extension of discounts the actual transaction value would be less. The appellant therefore had excess duty and filed refund claim. The department denied the refund claim for the reason that the appellant has not resorted to provisional assessment and also for the reason that the refund amount has not passed the test of unjust enrichment. 2.  In the impugned Order-in-Appeal in para 12 & 13 the Commiss....

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....e case of Oriental Explosives (P) Ltd.'s case (supra). Their Lordships had observed that even though the assessment was not provisional, that by itself would not disentitle the assessee from claiming the refund. Following the said principle, we are of the considered opinion that merely because the assessment is not provisional, it would not deprive the Appellant in claiming the refund claim of the excess paid earlier. Also, in our view the relevance of assessment either provisional or otherwise comes into play only for the purpose of computation of the time-limit from the relevant date, in filing the refund claim under Section 11B of CEA, 1944. It has nothing to do with the eligibility of refund. In the present case, the refund claim was fi....