2018 (7) TMI 416 - AT - Central Excise

Tribunal restores adjudication order, overturns Commissioner decision on Central Excise duty refund

The Tribunal allowed the appeals filed by the appellant, restoring the adjudication order and overturning the Commissioner (Appeals) decision. It held ... Refund claim - Valuation - inclusion of discount amount in assessable value - Held that:- The appellant had allowed performance based discounts to its buyers by way of cash discount, Turn over discount, special discount, etc. as per their sales policy. The appellant had extended such discounts vide cheques which established that the duty against which the refund applications had been filed had been paid by the appellant and had not been passed on to any other person under Rule 12B read with Section 11B of the Central Excise Act, 1944 - the concerned Range Officers had certified the discount amounts that had been passed to the buyers vide their verification reports. The appellate authority had observed on the earlier occasion that the discount has been passed on to the dealers which were not challenged by the Revenue in the earlier occasion. So, the Adjudicating Authority had rightly sanctioned the refund on the basis of the findings of the Commissioner (Appeals) in earlier Order-in-Appeal. Appeal allowed - decided in favor of appellant Issues:Refund of Central Excise duty on 'cellophane film' - Doctrine of unjust enrichment - Appeal against Orders-in-Appeal - Discount passed on to buyers - Refund applications - Adjudication order - Commissioner (Appeals) decision - Tribunal's decision.Analysis:Refund of Central Excise duty on 'cellophane film:The appellant cleared 'cellophane film' under chapter 39 of the Central Excise Tariff Act, 1985, paying duty on the factory gate price. The appellant issued discounts to buyers through cheques or debit notes, leading to refund applications for Central Excise duty paid. The adjudicating authority initially granted the refunds, but the Commissioner (Appeals) overturned this decision, prompting the appeals to the Tribunal.Doctrine of unjust enrichment:The impugned order invoked the doctrine of unjust enrichment to deny the refund, suggesting that the duty had been passed on to buyers. However, the Tribunal found that the appellant had provided discounts directly to buyers and had not passed on the duty, as evidenced by the certification of discount amounts by Range Officers and the verification reports.Appeal against Orders-in-Appeal:The Tribunal reviewed the findings of the Adjudicating Authority and the Commissioner (Appeals) to determine the correctness of the refund claim. It noted that the earlier Order-in-Appeal had acknowledged the passing on of discounts to buyers, which was not contested by the Revenue. Therefore, the Tribunal concluded that the refund should be granted based on the previous decision.Conclusion:Ultimately, the Tribunal restored the adjudication order, setting aside the Commissioner (Appeals) decision and allowing the appeals filed by the appellant. The judgment emphasized the proper application of rules regarding the passing on of discounts and the absence of passing on Central Excise duty to buyers. The decision upheld the appellant's entitlement to the refund of Central Excise duty on 'cellophane film'.