TaxTMI 
TaxTMI 
2019 (3) TMI 1091
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....ppellants had revised their refund claim to Rs. 16,65,845/-. After due process of law, the Original Authority vide Order dated 31.10.2005, rejected the refund claim stating the reason that the appellant had not opted for provisional assessment. In appeal, the Commissioner (Appeals) vide Order-in-Appeal No. 56/2007 dated 31.05.2007 remanded the matter back to the Original Authority with directions. In such remand proceedings, the Original Authority vide Order dated 06.01.2009 sanctioned refund of Rs. 13,23,279/-. 3. Against such order of sanction of refund, the Department filed an appeal before the Commissioner (Appeals) and vide Order impugned herein, the Commissioner (Appeals) allowed the appeal filed by the Department, thus rejecting the sanction of refund. The appellant is thus before the Tribunal. 4. On behalf of the appellant, the Ld. Advocate Shri. Raghavan Ramabadran appeared and argued the matter. His arguments can be summarized as under : 1.1 Normally goods would be sold at the same price at the Kit Stores as that of the factory. The price of goods are revised periodically by the Head Office of the appellant. In such case, the goods are sold at such revised price ....
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....see has adopted higher value at the factory gate than the value of the goods cleared at the kit stores; b) The refund eligible to the assessee is not barred by unjust enrichment; c) The revised working with refund claim of Rs. 16,65,845/- cannot be considered as refund claim under Section 11B of the Central Excise Act and therefore, refund of Rs. 13,23,279/- is allowed by way of credit in their CENVAT Credit account. Consequent to the order, the appellant availed Credit of the refund. Against such availment, the Department has not issued any Show Cause Notice for recovery of erroneously granted refund; 1.4 Against such order of sanction of refund, the Department preferred an appeal before the Commissioner (Appeals) who has set aside the Order-in-Original dated 06.01.2009 and denied the refund claim on the ground that the value of goods adopted by the appellant in their refund worksheet is not in consonance with Rule 7 and therefore, the Order sanctioning refund is incorrect. 2.1 The appellant, upon clearance of the assemblies to the Kit Stores, paid excise duty in terms of Rule 7 of the Central Excise Valuation Rules. On subsequent sale to the customers f....
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....ecovery has been issued, the entire proceedings fail. 5. On behalf of the Department, Ld. AR Shri. B. Balamurugan appeared and argued the matter. He supported the findings in the impugned Order. It was emphasized by him that the Original Authority while sanctioning the refund had not gone into the question of unjust enrichment and therefore, the matter requires to be remanded. 6. Heard both sides. 7. The appellant had filed a revised refund claim of R. 16,65,845/- However, in the second round of adjudication vide Order dated 06.01.2009, the Original Authority had sanctioned the refund claim of Rs. 13,23,279/- only. The appellants having not preferred any appeal against the non-sanction of the balance amount, the dispute in this appeal is confined to the amount of Rs. 13,23,279/- only. 8.1 The main ground on which the Commissioner (Appeals) has disallowed the refund claim is that the appellant has not followed Rule 7 of the Central Excise Valuation Rules, 2000. However, on perusal of the earlier Order-in-Appeal No. 56/2007 dated 31.05.2007 it is seen that after considering the issue in detail, the Commissioner (Appeals) has remanded the matter to examine the aspect as to....
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....y had effected reduction in the selling price with effect from 20.01.2005 without raising the issue of Provisional Assessment, since the Provisional Assessment or no Provisional Assessment does not make any difference as the appellant filed the refund at the initial stage and the revised amount within the time limit prescribed under Section 11AB of the Central Excise Act, 1944. (ii) The question of unjust enrichment should also be examined in case the refund is found to be admissible. As far the first direction is concerned, the assessee filed the refund claim on 15.04.2005, well within the one year period stipulated in Section 11B of the Central Excise Act, 1944 and from the records, it is seen that the assessee adopted higher value at factory gate than the value of the goods cleared at the Kit Stores. As far as the second direction is concerned, I find from the invoices submitted by the assessee that the goods are cleared from the Kit Stores under commercial invoices and the value represents the Gross value of the product and no other charges are collected from the customers on the invoice towards duty incidence. Moreover, M/s. TVS Electronics Kit Stores is not a regi....