Decided on March 20,2015



R. Periasami, Member (T) - (1.)THIS appeal is arising out of the Order -in -Appeal No. 39/2007 dated 19.04.2007 passed by the Commissioner (Appeals).
(2.)THE brief facts of the case are that consequent on the OIA No. 189/2003 -CE dated 15.10.03, the provisional assessment was finalized and the appellant filed refund claim. In the said order the lower appellate authority allowed the additional trade discounts, cash discounts, performance incentives, payment of freight and insurance etc. The Asst. Commissioner vide order dated 20.10.2006 sanctioned the refund but credited the same to the consumer welfare fund, as the appellants failed to produce any evidence against unjust enrichment. On appeal, the Commissioner (Appeals) rejected their appeal and upheld the order of the adjudicating authority.
The Ld. Advocate for the appellant submits that they are engaged in the manufacture of watches falling under Chapter 99 on behalf of Titan Industries Ltd. They have been allowed various deductions by the principal manufacturer and they opted for provisional assessment. The department finalized the assessment for the year 1996 -97 on 10.01.99, and while finalizing the assessment, Addl. trade discounts cash discounts and performance incentives, seasonal discounts, freight and insurance were disallowed. On appeal the Commissioner (Appeals) allowed their appeal except seasonal discounts. Both the adjudicating authority and the appellate authority had rejected their refund under unjust enrichment clause. The unjust enrichment clause is not applicable in their case as the goods are sold to ultimate consumers from the stock point and the discounts were given to the customers at the stock point itself and the discounts were known prior to the removal of goods. In their own case, the Commissioner (Appeals) allowed their refund for assessment year 1995 -96 vide order dated 187/1999 dated 01/09/99. The Revenue filed appeal before the Hon'ble Tribunal against the above order and the Hon'ble Tribunal dismissed the Revenue appeal vide Final Order No. 1103 & 1104/2000 dated 11.08.2000. The department preferred CMA before the Hon'ble High Court of Madras against the order of the Tribunal and the same was dismissed the Revenue appeal vide order dated 15.11.2006. She submits that the refund claim is not hit by unjust enrichment clause as the department allowed their refund for the earlier period. She relied upon the following case laws in support of her contention.

"1. CCE v. TVS Suzuki Ltd. : 2003 (156) ELT 161

2. Hindustan Lever Ltd. v. CCE, Nagpur : 2011 (274) ELT 146

3. CCE, Visakhapatnam v. A.P Paper Mills Ltd., 2006 (198) ELT 237

(3.)TATA Motors Ltd. v. CCE, Pune -I : 2014 (307) ELT 761"
She further submits that the period involved in the present appeal is 1996 -97 and the provisional assessment was finalized on 11.01.99. Whereas, Rule 9B(5) was amended only from 25.6.99 wherein the provisions of Section 11B(2) was made applicable for provisional assessment. Since the period of provisional assessment is prior to 25.6.99, unjust enrichment clause is not applicable in their case.

4. The Ld. AR reiterates the findings of the adjudicating authority and OIA. He further submits that unjust enrichment is applicable in their case as Section 11B came into effect from 01.08.98 only Rule 9(B) was amended on 25.06.99. By virtue of Section 11B where the unjust enrichment was extended for finalization of provisional assessment, unjust enrichment will apply in their case. He relied on the following case laws.

"1. CCE, Mumbai -II v. Standard Drum & Barrel Mfg. Co. - : 2006 (199) ELT 590 (Bom.)

2. Sahakari Khand Udyog Mandal Ltd. v. CCE : 2005 (181) ELT 328 (S.C.)"


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