2018 (4) TMI 892

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....ts of the case are that the appellant removed the 'Post Mix Canisters' from the factory of production to the depot on stock transfer. Such post Mix Canisters are subsequently sold from the depot to different customers upon allowing discount, which varies from customer to customer. The provisional assessment, for the financial year 2012-13 (in respect of appeal No.E/70001/2016) and was finalized by Assistant Commissioner vide Order-in-Original dated 30th May, 2014. Similarly, provisional assessment for the other period 2011-12 was also finalized and excess payment made by the appellant-assessee was determined. Soon thereafter, the appellant filed refund claims for the amount found paid in excess. The Assistant Commissioner in the Ord....

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.... is paid on provisional basis is much higher than the price actually collected from the customers and thus excise duty actually collected from the customer is always lower than the amount of duty is paid by the appellant. Thus, it is evident that the differential duty paid in excess by the appellant themselves and they are entitled for refund. Further, similar refund claim was filed for previous three financial years. Under similar facts and circumstances, the refund was granted post finalization of the assessment. Such refund was granted on similar set of documents produced during the prior period. The appellant also drew attention of the Appellate Court to the observations of the Assistant Commissioner as contended in refund order dated 1....

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....e learned Commissioner (Appeals) was pleased to uphold the rejection of refund on the ground of unjust-enrichment, observing - "appellant have submitted all the documents and evidences necessary to establish that the incidence of duty so being claimed as refund has not been passed on to their customers, have already been submitted at the stage of finalization of the provisional assessment, is not tenable" The learned Commissioner referred to the observation of the Assistant Commissioner- "during re-examination of the documents/ invoices, 199 invoices were not found in the records submitted by the party. In response to verbal request for submission of missing invoices, the party could not submit 199 invoices even after repeated request by th....

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....able. Learned Counsel for the appellant states that the learned Commissioner (Appeals) have disallowed the refund claim on flimsy grounds without there being a categorical finding that the appellant have passed on the incidence of duty paid, in excess. Accordingly, he prays for allowing the appeal, with consequential benefits. 6.  The learned A.R. for revenue have relied on the impugned order. 7.  Having considered the rival contentions, I find that from the Order-in-Original finalizing the provisional assessment, it is evident that the appellant had filed all the documents necessary to determine the tax liability for finalization. Accordingly, the Assistant Commissioner computed the final tax liability and determined, the tax p....