TaxTMI 
TaxTMI 
2011 (2) TMI 785
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....e as to why the said refund claim be not rejected. The respondent-assessee contested the show cause notice before the Adjudicating Authority and adduced evidences in the form of Chartered Accountant's certificate and balance sheet. The Adjudicating Authority held that the respondent-assessee are eligible for refund of the amount claimed, but held that, since the respondent-assessee has not proved that the burden has not been passed on to their buyers, credited the same to the Consumer Welfare Fund. Aggrieved by such an order, the assessee preferred an appeal before the learned Commissioner (A) and the learned Commissioner (A) has set aside the impugned order and allowed the appeal. Aggrieved by such an order, revenue is before us. 3. The learned JCDR assailed the impugned order on the various grounds. It is the submission that the respondent-assessee paid the Central Excise duty "under protest" and the amount of duty has been specifically charged in the invoices. It is his submission that once the amount has been charged in the invoices, respondent-assessee has collected the same from its buyers. It is also his submission that the Central Excise duty has been specifically ch....
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....xpenditure to Profit and Loss Account and appropriation of the same to the sale proceeds would amount to recovery of the same from the buyers and hence, unjust enrichment gets attracted. He would also submit that in the recent judgment of the coordinate Bench in the case of Philips Electronics India Ltd. - 2010 (257) ELT 257 (Tri.-Mumbai), the coordinate Bench has held that when the amount has been shown in Profit and Loss Account, it must have been factored into price of goods manufactured and accordingly, refund is hit by unjust enrichment. He relies upon the series of case-laws as given below: (i) Crompton Greaves Ltd. - 2009 (246) ELT 409 (Tri.-Mumbai) (ii) Charu Home Products Pvt. Ltd. - 2009 (244) ELT 465 (Tri.-Mumbai) (iii) Hanil Era Textiles Ltd. - 2008 (225) ELT 117 (Tri.-Mumbai) (iv) Skycell Communications Ltd. - 2007 (216) ELT 702 (Tri.-chennai) (v) Inn-Venue Hospitality Management P. Ltd. - 2008 (225) ELT 500 (Tri.-Mumbai) (vi) India Agencies - 2007 (212) ELT 507 (Tri.-Chennai) (vii) Sindhur Beedi Works - 2009 (238) ELT 165 (Tri.-Chennai) (viii) Sony Udyog Vs. CCE, Indore - 2003 (159) ELT 413 (Tri.-Del.) (ix) Toyota Kirloskar Motors Ltd. # 201....
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....n today. It is his submission that this Bench has upheld the order of the learned Commissioner (A) in that case. It is his submission that the said case is still binding on this Bench as the Hon'ble High Court of Andhra Pradesh has only admitted the appeal filed by the revenue. It is his submission that the Hon'ble High Court of Punjab and Haryana in the case of CCE, Gurgoan Vs. Uni products (India) Ltd.- 2009 (238) ELT 735 (P&H) has clearly held that the declaration in invoices is in pursuance to the statutory requirements. He would also submit that this bench in the case of CCE, Mysore - Premier Aryco India Ltd. - 2010 (260) ELT 158 (Tri.-Bang.) has held in favour of the assessee relying upon the costing data and demonstration by the assessee that the burden was not passed on to the consumer. He would submit that in the present case, Chartered Accountant who gave the certificate of non-passing of burden of duty, has clearly recorded stating that the said certificate is given after going through the records of the appellants and the invoice copies and other records. It is his submission that in a peculiar facts and circumstances of this case, the case laws cited by the lea....
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....ned Commissioner (A) while allowing the appeal of the appellant and granting them the refund claim has relied upon the Chartered Accountant#s certificate which reads as under: It is seen from the records that as against the above detailed Chartered Accountant's certificate, revenue has not produced any contrary evidence to rebut the same except for claiming that the said certificate is devoid of any details. We find that the said Chartered Accountant#s certificate as reproduced hereinabove clearly indicates that the Chartered Accountant (who was also the statutory auditor of the respondent-assessee) has given the certificate after going through the entire records of the respondent-assessee. In the absence of any effective rebuttal of the said Chartered Accountant certificate by leading a contrary evidence, we are of the considered view that the Chartered Accountant's certificate which indicates that the duty liability has not been passed on and has been absorbed by the assessee, cannot be rejected as an evidence in support of non-passing of the burden of incidence of duty. 5.4 Be that as it may, we find that this Bench in the respondent-assessee's own case vide Fi....
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....en has been passed on to the buyers. Hence, the inference of Commissioner in grounds of appeal (vi) is not correct. There are several decisions, which hold that when the Chartered Accountant certifies that the duty burden has not been passed on to the buyers, the same has to be accepted. On going through the impugned order and also the order of the lower authority we do not find any infirmity. We are convinced that there is no unjust enrichment in the present case. Hence, Revenue's appeal is rejected." It can be seen from the above reproduced order of this Bench, the issue before the very same Bench was identical to the issue which is before this bench. It can also be seen that the grounds which are taken by the revenue in this case are identical to the grounds urged in that case. We are of the considered view that the decision of a coordinate bench is binding, more so, if facts are same and is in the assessee's own case. 5.5 We find that Hon'ble Supreme Court while disposing Civil Appeal No.9439/2003 in their judgment dated 18th October 2010 had laid down the principle of law which is as under: "18. A coordinate bench cannot comment upon the discretion exercis....