TaxTMI 
TaxTMI 
2023 (2) TMI 1225
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....(various grades and pack sizes) through their C. & F Agents / Depots situated all over India. the lubricating oils cleared in packages of capacity more than 25 Ltr and other products the assessable value is required to be determined under Section 4 of the Central Excise Act. 2.2 At the time of clearance such goods the appellants are not in a position to determine the correct value based on the price at which such goods are sold from the depot. Hence they opted for provisional assessment. 2.3 Accordingly, the appellants, at the time of clearance of the goods under assessment, determined the assessable value on the basis of the approximate price at which the goods are likely to be sold from the depot and paid the duty. Subsequently, in terms of Rule 7 of the Valuation Rules, 2000, based on the sale price charged by the appellants for the sale of the goods from their depots and premises of consignment agent at the time of removal of goods under assessment, the assessable value is required to be determined and the duty liability is required to be re-worked out. 2.4 The provisional assessments for the period April 2010 to March 2011 were finalized by orders dated 16.6.2011, 19.....
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....rtment, the sane can be evidencing from second last para on internal page 4 of the Order- In-Original No. MK/69-71/DC/Bel-II/SAVITA/15-16 dated 17.06.2015 (Copy of the said order is attached in case law compilation at sr.no.2- page 34 to 38) passed by the Deputy Commissioner for granting the said refund, wherein he has noted that said Order-In-Appeals passed by the Commissioner (Appeals) has been accepted by the Committee of Commissioner on 16.06.2015. • For earlier period October 2009 to March 2010 the refund was rejected on the identical ground by the Assistant Commissioner and Commissioner (Appeals). The same was set aside and refund was allowed by the CESTAT vide Order No. A/86656- 86657/2019 dated 30/07/2019 arising out of Excise Appeal No. 1722 of 2011. (Copy of the said order is attached in case law compilation at sr.no.2- page 39 to 43). The said order has been accepted by the department, the same can be evidencing from para 6 of the Order-In-Original no. R-154/SD/DC/Bel-III/RV/Savita/Refund/2019- 20 dated 24.12.2019 (Copy of the said order is attached in case law compilation at sr.no.2- page 44 to 48) passed by the Deputy Commissioner for granting the said ref....
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....on the identical issue and allowed in favour of the appellant and the orders have been accepted by the same principles should be adopted in the present case in view of the decisions as follows: i. Birla Corporation Ltd. [2005 (186) E.L.T. 266 (S.C.)] ii. Jain Vanguard Polybutlene Ltd [2010 (256) E.L.T. 523 (Bom.)] iii. Sunbel Alloys Co. Of India Ltd [2015 (316) E.L.T. 353 (Bom.)] 4.4 In case of Nahar Spinning and Weaving Mills Ltd. [2009 (247) ELT 708 (T-Del)] following has been observed: 5. On perusal of the Adjudication order we find that the original authority sanctioned the refund claim holding that "provisional assessment for the period in question was finalized on the basis of price prevailing at depot on the day the goods were cleared from the factory. The price prevailing at depot has been lower than the price at which duty was paid by the appellant. The buyer at depot paid the duty on this lower price. Thus the excess duty paid by the appellants at the time of removal of the goods from the factory has not been recovered from the buyer. Hence, incidence of duty has not been borne by the appellants only." The Commissioner (Appeals) set ....
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....-objections are disposed of in the above terms." 7. The decisions cited by the learned D.R. for applicability of unjust enrichment are not relevant in this case, as the appellants fulfilled the conditions of unjust enrichment by showing that the depot price prevailing at the relevant time. 4.5 The appellants submitted that at the time of verification of the sales invoices raised ex C & F Depot for finalization of provisional assessments, it has been verified by the verifying officer the sales invoices raised ex C & F depots do not show the duty element separately. In case of N G Thakkar 2012-TIOL-280-HC-MUM-CX following has been held: 9. The claim of the assessee that the upward revision in the prices of the compounded asafoetida cleared during the relevant period was not on account of the inclusion of the central excise duty element but on account of increase in the price of the raw materials used in the production of compounded asafoetida has been verified by the Commissioner of Central Excise (Appeals). The same is evident from the comparative chart set out in para 15 of the order passed by the Commissioner of Central Excise (Appeals). It is not in dispute t....