2018 (12) TMI 245

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....res and other parts and had opted for provisional assessment under Rule 7 of the CER 2002 in respect of the goods cleared for the year 2015-16 on the ground, that the transaction value can only be determined after confirming various discounts that are offered at later dates and not known at the time of clearances from the respective factories. As per the request of the assessees, the clearances from the factory gate to the depots were ordered to be provisionally assessed as per Rule 7 of the CER for the year 2016-17. After calculating all the applicable discounts for the transactions it was seen that they had short paid duties in respect of certain transactions and had also excess paid duties of excise in respect of certain other transactio....

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....elied upon the decision of the Karnataka High Court in the case of Toyota Kirloskar Auto Parts Pvt. Ltd. and the decision of the Tribunal in the case of Indian Telephone Industries. He further submitted that in the earlier decision both the authorities have held that unjust enrichment is not applicable whenever there is a provisional assessment and in an appeal filed by the Revenue, the Tribunal dismissed all the appeals of the Revenue. 4. On the other hand the learned AR defended the impugned order and submitted that even in the cases of provisional assessment, before grant of refund of excess duty paid, the same needs to be subjected to test of unjust enrichment which is built into Section 11B of the Central Excise Act. He specifically r....

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....16 dated 20.10.2016, wherein while disposing the Revenue's appeal the Tribunal observed as follows: "6. The learned advocate on behalf of the respondent-assessee defended the impugned order. He submitted that the decision of the Larger Bench in the case of Excel Rubber Ltd. (supra) as well as the decision of the Hon'ble Karnataka High Court in the case of Toyota Kirloskar Auto Parts Pvt. Ltd. (supra) were considered in the Three-Member Bench decision in CESTAT, Delhi in the case of Hindustan Zinc Ltd. Vs. CCE reported in 2015-TIOL-2427-CESTAT-DEL. In this decision, it has been held that adjustments at the time of finalization of provisional assessments would be permissible without putting the excess duty paid to the test of unjust enrichm....

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....-paid duty during the period of provisional assessments, upon finalization of the assessments. Inasmuch as the issue is decided by the majority decision of the Tribunal in favour of the assessee, we find no merits in the Revenue's appeal. The same is accordingly rejected." Since the facts involved in the present two appeals as well as the issues are identical, we find no merits in the Revenue's appeals. By following the earlier order of the Tribunal, we reject the Revenue's appeals." 5.2. We note that the facts in the present case is identical to that in the above case and hence is required to be followed. 5.3. We have also considered the decision of the Apex Court in the case of Addison and Company cited supra by Revenue and are of t....