HOSPET FOODS PVT. LTD. Vs. CCE

JUDGEMENT

(1.) THE claim for refund of Rs. 18,893/ - filed by the appellants herein was rejected by the Assistant Commissioner on the ground that the duty liability had been discharged correctly and that no documentary evidence for arriving at the revised assessable value was furnished, and that part of the demand was barred by limitation. In the appeal before the Commissioner (Appeals), the plea raised was that duty payment was only provisional and cannot be treated as correct unless it is finally assessed. The Commissioner (Appeals) upheld the adjudication order and in addition, he held that whether assessments were provisional or not, the burden lies upon the assessees to prove that the incidence of duty has not been passed on and such burden has not been discharged by the assessees. Hence, this appeal.

(2.) THE appellants have asked for a decision on merits; hence, we have heard learned SDR and perused the records.

(3.) FROM the order in adjudication, it is not clear as to whether the assessments were provisional or otherwise. There is no material on record to establish that the assessments were provisional and there is also no evidence to the basis on which the appellants arrived at the revised assessable value subsequent to the clearance of the goods in question namely 'Real Brand Biscuits'. The question as to whether the bar of unjust enrichment is attracted upon the finalisation of provisional assessment now stands decided by the Supreme Court in in CCB, Mumbai -II v. Allied Photographic India Ltd. wherein it has been held that such bar is not applicable to a refund consequent upon finalisation of provisional assessment under Rule 9B of the erstwhile Central Excise Rules, 1944. We, therefore, set aside the impugned order and remand the case to the Adjudicating Authority for the purpose of satisfying himself as to the basis on which the assessable value of the biscuits was revised by the appellants, and to satisfy himself as to the nature of the assessments i.e. whether provisional or final. In the event of his being satisfied about the basis of revision and that the assessment/assessments were provisional, then, in the light of the Supreme Court decision cited supra, the refund is required to be granted. Fresh order shall be passed after extending a reasonable opportunity to the assessees for putting forth their defence and substantiating the same. The appeal is thus allowed by remand.