TaxTMI 
TaxTMI 
2014 (2) TMI 877
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.... In Central Excise Appeal NO.89 of 2011, the hon'ble High Court dismissed the appeal of M/s Videocon in so far as it relates to rejection of their refund claim on account of time bar. While setting aside the order dated 4-11-201, the hon'ble High Court observed that the finding of the Tribunal that "there was no evidence to show that the assessee had actually issued credit notes in respect of the duty burden initially passed onto its customers at the time of clearance of the goods "is contrary to the fact recorded by the Commissioner of Central Excise (Appeals) who had recorded a finding that the refund has been allowed on the basis of the verification report submitted by the Range Superintendent wherein the said Superintendent on verification of the records recommended grant of the refund as claimed by the assessee. 3. The facts relevant to the case are as follows. M/s. Videocon are manufacturers of Colour TVs and sell the same from their sales depots situated at various places. The assessee had filed price declarations under Rule 173C of the Central Excise Rules, 1944, declaring therein the assessable value of the goods cleared to its various depots from where the goods were sol....
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....s being offered for ex-depot sale. Finally the Respondents filed revised price declarations on 21-6-97 revising the assessable value of the goods cleared to the depots during the period October 96 to June 97. iii) The buyers who purchased CTVs from depots were aware through trade circulars of the exact amount of discounts to which they were eligible. The depot issued invoices considering lower discounts than those mutually agreed prior to clearance. The balance discount was passed onto the buyers by way of credit notes and the Respondents received amount which was net of credit note. iv) If a view is taken wherever credit note is issued, refund is hit by unjust enrichment, such a view would make section 12B redundant. v) The hon'ble Apex Court in the MRF case 1995 (77) ELT 433 (SC) and Bombay Tyre International case 1984 (17) ELT 329 (SC) had held that discounts known to prior to clearance but quantified subsequently were deductible from price to arrive at the taxable value. vi) The hon'ble Rajasthan High Court in the case of A.K.Spintex 2009 (234) ELT 41 (Raj.) had held that refund cannot be rejected if excess duty collected ....
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....74) ELT 3 (SC) considered an issue whether revision of price declaration approved by department can be done retrospectively and held that such revision would be applicable only prospectively. Thus in the present case also the revision in the price declaration filed by M/s. Videocon would be only prospective. In the light of the above, it is pleaded that revision of prices subsequent to the removal of goods can apply only prospectively and passing of price reduction through credit notes cannot help in crossing the bar of unjust enrichment. Therefore, the refund claims ought to be rejected by setting aside the order of the lower appellate authority. 6. We have carefully considered the submissions made by both the sides. We have also gone through the records and the appeal memorandum and cross objections filed. Our findings and conclusions are enumerated in the ensuing paragraphs. 6.1 On going through the records, we find that there are several contradictions in the stand taken and the arguments advanced on behalf of M/s. Videocon. It is the contention of the appellant that there was a communication gap between the factory and the sales depot about the quantum of discounts given on....
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....ars communicating reduction in prices has been submitted by the appellant before this Tribunal nor copies of such circulars claimed to have been issued by the appellant is available on records. The only fact verifiable from the records is that the appellant had filed a price declaration at the time of removal of the goods from the factory indicating the prevailing price for the goods for sale at the depots. After a lapse of more than 9 months, the appellant filed a revised price list dated 17-6-97 revising the prices retrospectively from October 96 onwards. Thus the entire argument of the appellant that higher discounts allowed at the depot subsequent to the sale of the goods were known in advance is only an afterthought to claim ineligible refund and we hold accordingly. 6.4 The price declaration required to be filed by the assessee with the department under Rule 173C is an advance declaration as is evident from the provisions of the said Rule. "173C. Procedure regarding valuation of goods assessable ad valorem.- (1) Every assessee who produces, manufactures or warehouses goods which are chargeable with duty at a rate dependent on the value of the goods and removes ....
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....onal consideration flowing directly or indirectly from such sales over and above what has been declared. (2A) Every assessee who produces, manufactures or warehouses goods notified under Section 4A of the Act shall file with the proper officer a declaration in such form and in such manner and at such interval as the Central Board of Excise and Customs may specify, declaring the retail sale price of such goods, amount of abatement, if any on such sale price and such other particulars as may be specified by the said Board. (3) The proper officer, duly empowered by the Central Government under section 14 of the Act, may, where he considers it necessary during the course of any enquiry in connection with the declaration made in the documents referred to in sub-rule (1) or sub-rule (2A) by an assessee,- (a) require any person to produce or deliver any document or thing relevant to the enquiry ; and (b) examine any person acquainted with the facts and circumstances of the particulars declared in such documents or other records, in the manner provided in section 14 of the Act. &n....
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....e conformed and complied with by every assessee. 6.6 It is a settled position in law as held in Rainbow Industries case cited supra that revision of price list/declaration can be effective only prospectively. Applying the ratio of the said decision to the facts of the present case, the revised price declaration filed by the appellant indicating a higher discount can only be effective from its date of filing, that is, 17-6-97 and cannot be applied retrospectively from October 96 onwards. 6.7 An argument has been made that price declaration under Rule 173C has nothing to do with the grant of refund under section 11B of the Central Excise Act and if duty has been paid in excess, then refund has to be granted. This argument advanced on behalf of the appellant is totally incorrect. Refund of duty under section 11B pre-supposed the determination of the correct amount of duty liable to be paid. That determination of the correct duty liability is dependent on the correct valuation of the goods where the rate of duty is ad valorem. It is for the correct determination of value, Rule 173C provides for declaration of value. Sub-rule (4) of the said Rule provides that "the proper officer may ....
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....r not. Further, the said decision of the hon'ble High Court has been challenged by the Revenue before the hon'ble Apex Court by way of SLP and leave has been granted by the hon'ble Apex Court as reported in Commissioner v. Addison & Co. -2003 (152) ELT A94 (SC). It is a settled position in law that once an appeal has been admitted by the hon'ble Apex Court against a decision of the Tribunal or High Court, then the said decision is in jeopardy and cannot form a precedence as held by the hon'ble Apex Court in UOI v. West Coast Paper Mills Ltd. as stated in paragraph 38 of the said judgment as extracted below:- "38. In the aforementioned cases, this Court failed to take into consideration that once an appeal is filed before this Court and the same is entertained, the judgment of the High Court or the Tribunal is in jeopardy. The subject matter of the lis unless determined by the last Court, cannot be said to have attained finality. Grant of stay of operation of the judgment may not be of much relevance once this Court grants special leave and decides to hear the matter on merit." Thus it is improper and premature to rely on the decision of the hon'ble Madras High Court ....
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....id decision cannot apply. 6.10 It is a settled position in law that the ratio of any decision must be understood in the background of the facts of that case and a case is only an authority for what it actually decides, and not what logically follows from it and a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. In Bharat Petroleum Corporation Ltd. & another v. N.R.Vairamani & another - AIR 2004 SC 4778, it was held that a decision cannot be relied on without disclosing the factual situation. In the same judgment it was held as under: "Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems not as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgment of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy d....
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.... duty had been collected during that period. The assessee issued credit notes to the buyers passing on the benefit of duty reduction and claimed refund of the higher duty paid. It was held that refund would not be admissible even though credit notes had been issued to the buyers passing on the benefit of duty reduction. The said decision was affirmed by the hon'ble Apex Court. 6.13 Subsequently a question arose for consideration before a Larger Bench of this Tribunal in S.Kumar's Ltd. case as to whether post-clearance adjustment like issuance of credit notes or cheques by the assessee who is claiming refund to the buyer of the goods, taking the burden of duty on the goods would help the assessee to get over the bar of unjust enrichment under section 11B of the Central Excise Act. It was held by this Tribunal that subsequent issue of credit notes will not help in overcoming the bar of unjust enrichment. The same issue again arose for consideration in the Grasim Ind. (Chemical Division) case and another Larger Bench of this Tribunal following the decision in the Sangam Processors case confirmed the same view. In Grasim Industries Ltd. Vs. CCE, Bhopal - 2011 (271) ELT 164 (SC) a simi....