2018 (10) TMI 697 – CESTAT CHENNAI – TMI – Refund claim/adjustment of excess paid duty against short paid – finalization of provisional assessment – whether the appellants are eligible for adjusting the excess paid duty towards the short paid as well as whether they are eligible for refund of the excess amount after such adjustment?
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Held that:- In Toyota Kirloskar Auto Parts [2011 (10) TMI 201 – KARNATAKA HIGH COURT] the Hon’ble High Court of Karnataka had occasion to analyse the issue and has held that such adjustment is permissible.
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Since the issue stands settled in favor of the appellant the order directing to credit the sanctioned refund to the Consumer Welfare Fund is not in accordance in law and requires to be set aside – appeal allowed – decided in favor of appellant. – E/41550/2018 – 42582/2018 – Dated:- 11-10-2018 – Ms. Sulekha Beevi, C.S., Member (Judicial) For the Appellant : Shri Sai Prasanth, Advocate For the Respondent : Shri L. Nandakumar, AC (AR) ORDER The
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son that appellant has not proved that the burden of duty has not been passed on to another. In appeal, the Commissioner (Appeals) vide order dt. 22.6.2015 rejected the appeal of the appellant on the ground that appellant has not established that the duty has not been passed on to their buyers. The same was appealed to the Tribunal and vide Final Order No.41892/2016 dt. 07.10.2016, the matter was remanded to the adjudicating authority with a direction to give reasonable opportunity to the appellant and to pass a speaking order. Accordingly, the de novo adjudication order was passed vide OIO No. 13/2017-RF and the refund was sanctioned but the original authority again directed to credit the amount to the Consumer Welfare Fund. In appeal, the Commissioner (Appeals) again upheld such order. Thus appellants are once again before the Tribunal. 2. On behalf of the appellant, Ld.Counsel Shri Sai Prasanth appeared and argued the matter. He submitted that vide order of finalization of provision
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CESTAT Bangalore wherein the Tribunal relied upon the decision in the case of CCE Vs Indian Telephone Industries – 2016 (11) TMI 14-CESTAT Bangalore. 3. Ld. A.R Shri N. Nandakumar argued that the appellant has issue invoices even for the amount which has been excess paid by which the burden of duty is passed on to the other and therefore the refund has been rightly rejected by the authorities below. 4. Heard both sides. 5.1 The issue is whether the appellants are eligible for adjusting the excess paid duty towards the short paid as well as whether they are eligible for refund of the excess amount after such adjustment. In Toyota Kirloskar Auto Parts stated (supra) the Hon ble High Court of Karnataka had occasion to analyse the issue and has held that such adjustment is permissible. The relevant portion of the Hon ble High Court order is reproduced as under : 8. Therefore, it is clear that after a final assessment order is passed, if the duty paid in terms of provisional assessment is l
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ESTAT Bangalore. 5.2 The Tribunal also relied upon the decision in the case of Indian Telephone Industries vide Final Order No. 21010-21011/2016 dt. 25.10.2016 [2016 (11) TMI 14] to observe that excess paid duty of provisional assessment is required to be adjusted towards the duty short paid upon finalization of such provisional assessment. The appeal filed by the department against sanctioned of refund by the authorities below in the appellant s own case reported as above was dismissed by the Tribunal holding that the test of unjust enrichment is not required to be carried out prior to adjustment of excess duty paid. Following the said decisions in the appellant s own case, I am of the view that since the issue stands settled in favour of the appellant the order directing to credit the sanctioned refund to the Consumer Welfare Fund is not in accordance in law and requires to be set aside. Impugned order that extent is set aside. Appeal is allowed with consequential relief, if any, as
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