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CENTRAL EXCISE CESTAT Cases

Central Excise – Rule 7 of Central Excise Valuation Rules, 2000 - Refund of duty paid in excess on account of discount given at the time of sale of the goods from the depot - Non-opting for provisional assessment – appellant cleared the finished goods from the factory is on presumptive value and the transaction value is finalized only at the time of sale of goods from the depot - Whether discount given by the appellant at the time of sale of goods from is includible in the assessable value when the appellant has not opted for provisional assessment – HELD - The charge that appellants have not opted for the provisional assessment was not made charge in the show cause notice, therefore the impugned order travels beyond the scope of show cause notice which is not permissible under the law - Secondly, merely because the appellant has not opted for the provisional assessment the legal provision for valuation will not get altered - The duty is payable in accordance with the Central Excise Valuation Rules, 2000 - In terms of Rule 7 the excise duty is payable at on the value at the time of sale of goods from depot after removal from the factory. Therefore, on the differential excise duty due to the difference between the clearance value from the factory and the sale value from the depot is refundable to the appellant - merely because the appellant have not followed the provisional assessment, the methodology adopted for adjustment of excess payment of duty cannot be questioned - though the appellant have not opted for the provisional assessment, the admitted excess payment of duty has to be refunded to appellant - As regard the principle of unjust enrichment the appellant have submitted the CA Certificate and JV Entries whereby it is established that the incidence of duty for which the refund was sought for has not been passed on - the appellant is prima facie entitled for the refund subject to verification of the documents. Accordingly, the impugned order is set aside and matter remanded to the Adjudicating Authority for passing a fresh order – assessee appeal is allowed by way of remand
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