TaxTMI 
TaxTMI 
2013 (8) TMI 792
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..../2012 dated 3.2.2012 had allowed the appeal filed by the appellants and taken a view that unjust enrichment was not applicable in the facts and circumstances of the case. It was submitted that the issue is covered by the precedent Tribunal's decision in their own case and therefore the appeal should be allowed in this case. However, ongoing through the records and hearing both the sides it is seen that the issue involved is not only unjust enrichment in this case but refund claim has also been rejected on the ground that the assessee had not challenged the order passed finalizing the provisional assessment for the months November 2010 and December 2010. Since there are two issues involved it would be proper to consider each issue. 2. The issue is whether the claim of the department and the findings of the lower authorities that since the appellant did not challenge the order finalizing the provisional assessment, the refund claim cannot be considered as correct. This conclusion has been reached by both the lower authorities in view of the fact that while finalizing the provisional assessment, the authority had considered eligibility for refund in respect of direct sales at the f....
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....re the assessee is entitled to refund consequent to order of final assessment under sub-rule (3), subject to this sub-rule (6), provides for verification of unjust enrichment, there shall be paid an interest on such refund at the rate specified by the Central Government by Notification issued under Section 11BB of the Act from the first day of the month succeeding the month by which such refund is determined, till the date of refund. 4.1 It can be seen that this sub-rule covers the payment of interest from the first day of the month succeeding the month in which the quantum of refund is determined by the finalizing authority and sub-rule (6) also provides that the unjust enrichment hurdle has to be crossed if the refund has to be paid to the assessee. 4.2 The question that arises is whether the Assistant Commissioner was correct in taking a view that refund was not admissible on the ground of unjust enrichment at the time of finalization of the assessment in the absence of any evidence produced by the assessee or without giving an opportunity to the assessee to produce evidence that the duty element has not been passed on. If we read the provisions of Rule 7, the Rule require....
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....m after finalizing on the ground that the assessment order was not challenged, to say the least is illogical and in view of the observations made is illegal also since the Assistant Commissioner who is implementing the Central Excise Act and Rules did not even bother to follow the rules and provisions of the Act before making such observations. 4.4 In view of the above observations, the first ground taken by the Revenue for rejecting the refund claim cannot be sustained. 5. Coming to the unjust enrichment, the Chartered Accountant (CA) certificate produced by the appellant before the original authority states that additional discounts allowed by the assessee have been verified as per the documents produced and also gives the details, which is basically a summary or total of all the transactions. In the description column, the certificate gives gross value of factory clearances on direct sales, discounts allowed in invoices, assessable value, duty paid, additional discount allowed on credit notes, net assessable value and excess duty paid which is claimed as refund. This is supported by the sales register which according to the original adjudicating authority, was also produce....
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.... raising invoices itself, there was no need for provisional assessment and there was no need for subsequent issuance of credit notes and there was no need for refund claims also. This observation only says that the authorities just did not want to examine the claim on merits. 5.2 I have already reproduced the brief summary of the observations of the contents of CA certificate and other documents. During the hearing, I also verified one invoice and a credit note issued to one of the dealers on a monthly basis and the relevant entries in the sales register produced before the authorities. From this, I find that it is quite easily verifiable as to whether the discount was allowed to the dealer and whether the amount was passed on. It was submission of the appellants before the lower authorities that the company maintained a running account in respect of dealers and when orders are placed by the dealers, the supplies were made by the appellants by raising the invoices and whenever additional discounts are allowed, credit notes were issued. Further, the DGM (Works) gave the address where the documents and records are located and also explained the process how the company is operating....
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....ve any finding about the delay in filing the refund claim. All the issues are pertaining to unjust enrichment only. 12. As an organized Sector Company, very company should maintain the Creditors and Debtors registers and they will given credit note in their account current to the dealers Account. The appellant had simply submitted the Statements to the department but not produced the relevant Debtors ledgers to the department to substantiate that the amount was passed on to the buyer. The appellants had simply stated that they have given additional trade discount to their dealers to sell their goods situated in a distanced place. The veracity of sale of goods at the lower rate buy the buyer was not clearly substantiated by the appellant to the satisfaction of the departmental officers i.e. production of sale Invoice raises by the dealers at the lower rate. It they have simply certified by the Chartered Account, it does not merit for consideration, that the goods were sold by them at lower rate. So, the ground of the appellant does not merit for consideration. 13. In respect of the other Grounds filed by the appellant are not allowed, as they could not substantiate the issue p....
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....n why debtors ledger is required and what conclusion can be drawn from it. Further, he also talks of creditors and debtors ledgers which are required to be maintained by other company. Again it is not possible to understand how these ledgers would help in deciding about unjust enrichment. Further, he also seems to be denying the refund on the ground that sale of goods at the lower rate to the buyer from the dealer has not been proved by the appellant. The law does not contemplate this and there is no detailed observation as to why and how the price at which the dealer's sale price is relevant and up to what level the department or the appellant is required to go to show that duty liability has not been passed on. The Commissioner (A) does not seem to have considered any issue in proper prospective in the impugned order. 7. The appellants have made detailed submissions and relied upon several decisions to support their case. I do not consider the requirement of consideration of these decisions since I have reached the conclusion that appellant is eligible for refund and the grounds taken for rejection are invalid in this case. 8. In this case, the another ground for coming to ....