2017 (8) TMI 160

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.... all over the country. The goods are ultimately sold to their dealers from the depots. Since the actual sale of the goods takes place only on a subsequent date from the depot, the appellant, while clearing the goods from the factory gate, discharges its duty liability as per Rule 7 of the Central Excise Valuation (Determination of prices of Excisable Goods) Rules, 2000. The refund claims of the appellant were sanctioned by the Assistant Commissioner. The department filed appeals against the order of the adjudicating authority and the same were allowed by the Commissioner (Appeals) vide order dated 26.8.2008. The appellant filed appeals before this Tribunal and this Tribunal vide order dated 14.1.2009 gave the following direction: "3. Heard....

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....ne beyond the direction given by this Tribunal in its remand order dated 14.1.2009 and has held that Rule 7 of Valuation Rules had not been violated. He pleaded that the Commissioner (Appeals) did not examine the voluminous evidences nor did she call for a report from the Range as regards the same, which clearly shows that the Commissioner (Appeals) had gone beyond the remand order. He also pleaded that they had not unjustly enriched themselves and when the price data was made available it was seen that there was variation between the stock transfer price and the normal transaction value on the same day or the nearest day. Where the stock transfer price was less than the normal transaction value ascertained according to Rule 7, the appellan....

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....e that they have paid more duty than the duty that was to be paid in terms of Rule 7 ibid. The appellant have not been able to establish that the higher duty paid by them for which the refund has been sought has not been recovered from the buyers. The appellant have argued that once the original authority has examined the plea of unjust enrichment, it is not open to Revenue to take a stand that the refund is hit by bar of unjust enrichment without further evidence. This plea of appellant is barred on the finding in the case of Ispat Industries (supra) where Range Officer had given a verification report. In the present case, there has been no verification by Range Officer. Besides, the findings of Commissioner (Appeals) are based on verifica....

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....ether the duty element was not borne by the ultimate buyers. Since the ultimate buyers have paid the entire amount mentioned in the invoices, it is evident that the entire duty element has been borne by the ultkmate buyers. As the entire amount has been recovered from the ultimate buyers including the duty element, unjust enrichment is attracted. It is not the case of the appellant that excise duty does not for part of the value of clearances from depot. The appellant have relied on the case law of Andhra Pradesh High Court claiming that the invoices may be cum duty invoices and the manner of preparation of invoices is not conclusive. I find that the case law cited by the appellant there is specific mention of that excise duty in the invoic....