2018 (4) TMI 611

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....ng Pan Masala and Gutkha falling under Chapter 21 and 24 respectively. The appellant discharged the excise duty in term of Rule 8 of central Excise(Valuation), rules, 2000, according to which appellant is suppose to pay duty on value which is 110% of cost of production. To arrive at cost of production, manufacturing cost of product has to be taken as per CAS-4. In this method of valuation final value cannot be determined at the time of clearance of the goods for the reason that CAS 4 can be finalised only after completion of financial year. The appellant approached department for provisional assessment vide their letter dated 9-5 2006 however department responded that the valuation should be adopted as per CAS-4. Appellant discharged the du....

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.... (a) Jindal Steel & Power Ltd Vs. Commissioner [2016 (342) ELT  253(Tri. Del.)] (b) I.T.C. Ltd vs. Commissioner [2016 (333) ELT 287(Tri. LB)] (c) Hansa steel Rolling Mill Vs. Commissioner [2011 (265) ELT  321(S.C.)] 3. On the other hand, Shri. N.N. Prabhudesai, Ld. Superintendent (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that since there is no provisional assessment of duty, refund claim filed after one year period from the date of payment of duty is clearly time barred as per provision of Section 11B of Central Excise Act, 1944. As regard the unjust enrichment, he submits that merely because of goods cleared by the appellant is for captive consu....

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....d only on availability of CAS4 certificate,  without CAS-4 certificate neither assessee can claim a final price nor department will accept the price adopted at the time of removal of the goods, therefore for all the purposes assessment under Rule 8 is always provisional. In the present case, refund claim was filed admittedly within one year from date of submission of CAS-4 certificate, only on obtaining CAS-4 certificate appellant could established excess payment of duty. Therefore in my considered view the refund claim filed after finalisation of the price i.e. on submission of CAS-4 certificate, refund is well within time period of one year therefore I hold that refund claim is not time barred. As regard the unjust enrichment, submis....