2017 (3) TMI 1088

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....e is whether the refund claim pursuant to finalization of Provisional Assessment for the period from April, 1998 to September; 2000 is hit by unjust enrichment. 2. The brief facts of the case are that the appellant, a Multinational Private Company is engaged in the manufacture of Complan & Glucon-D falling under Sub-heading 2106.90.99 & 1702.30.20 of Central Excise Tariff Act, 1985 among other products which are sold at MRP. During the period of April, 1998 to September, 2000 the appellant transferred the finished goods to its Depot subjected to Provisional Assessment under Rule 9B of erstwhile Central Excise Rules, 1944. Once expenses related to removal of goods like freight from Factory Gate to Depot, Sales Tax etc. was finalized, the ....

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....n the cost of goods on which the buyer had purchased. As the prices of the goods are not based on cost data but at factory gate sale. Hence, holding that the affidavit & Show Cause Notice do not support the test as to unjust enrichment, the refund claim was rejected. It was also observed that there was sale at factory gate and full duty is shown in invoices and nowhere mentioned that less value has been charged from the buyer. 3. Being aggrieved the appellant-assessee preferred appeal before Id. Commissioner (Appeals), who has also been pleased to reject the appeal, observing that as the appellant-assessee have not shown the refund amount receivable, 'as receivable' from the government in their balance sheet from the period 2001-....

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....t of Excise duty to ensure uniform billing by way of transaction value, to ensure a uniform return to the distributor/wholesaler and availability of goods to the consumers at MRP. By way of example the appellant has given the following calculation structure: - At factory Gate Invoice under Rule 52-A to C & F agent for transfer the goods ; (A) Trade Price (Inclusive of Taxes) Rs. 10.00 (B) Less: Assumed figure of sales tax. 1.00 (A-B) Trade Price (Exclusive of taxes)   Less: Equalized Freight 1.2% 0.11 9.00 Less: Trade Discount 5.5% 0.49 0.60 Price Inclusive of Excise duty 8.40 Excise duty paid 8.40 x 16/116 116 i.e. 16% on A.V. of Rs. 7.24/- 1.16 At C & F agent place sale invoice issue....

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....gument of Revenue, which was that the conclusion of the Tribunal that the bar of unjust enrichment have got no application since the assessee had paid the amount. The Hon'ble High Court, further, observed that the Tribunal was not concerned with the treatment given to the amount and/or debited in the assessee's profit and loss account. It is immaterial and irrelevant for the Tribunal and equally for us (HC) as to what the assessee terms this amount in his books of account. Even, if it is shown on the expense side that does not mean that the presumption that the burden, has been passed to the consumer, can be raised. 5. Accordingly, the Id. Counsel stated that the impugned order is directly hit by the Hon'ble Bombay High Court....