TaxTMI 
TaxTMI 
2016 (12) TMI 1222
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....nbsp;In the finalization of the assessment vide Order-in-Original No. 06/DYR/08-09 dated 11/9/2008 and No. 27/DYR/08-098 dated 21/10/2008 discount was allowed. Accordingly, in the assessment order it was mentioned that the appellant may file separate refund claim under Section 11B in respect of excess paid duty. The appellant filed refund claim in respect of excess paid duty for an amount of Rs. 39,57,598/-. The adjudicating authority, vide Order-in-Original No. 1020/09-10 dated 17/2/2010 though sanctioned the refund claim but credited the same into the consumer welfare fund under Section 11B of Central Excise Act, 1944 read with subrule (5) and (6) of Rule 7 of the Central Excise Rules, 2002. The adjudicating authority given the findings, that the appellant at the time of payment of excise duty did not show the same as receivable in the balance sheet. However the said amount was shown under the 'Loans and Advances' in the financial account for the year 2008-09. It was further found that excise duty paid in excess was booked under the profit and loss account in the relevant b....
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.....)] (d) Commissioner of C. Ex. Mangalore-3 Vs. Solaris Chemtech Ltd[2011(273) ELT 191(Kar.)] (e) Advance Steel Tubes Ltd Vs. Commissioner of C. Ex. Ghaziabad[2014(310) ELT 370(Tri. Del.)] (f) Eastern Shipping Agency Vs. Commr. of Service Tax, Ahmedabad[2013(32) S.T.R. 630(Tri. Ahmd.)] (g) Ranade & Co. Vs. Commissioner of Service tax, Ahmedabad[2013(32) S.T.R. 613 (Tri. Ahmd.)] (h) Commissioner of Central Excise, Pune-III Vs. Cummins India Ltd[2008(221)ELT 525 (Tri. Mum)] (i) Radico Khaitan Ltd Vs. Commissioner of Service Tax, Delhi[2014(34) S.T.R. 586(Tri. Del.)] (j) Shree Krishna Nylon Pvt Ltd Vs. Commissioner of C. Ex., Mumbai-III[2015(327) ELT 626 (Tri. Mumbai)] (k) Commissioner of Central Excise, PUne-I Vs. Sandvik Asia Ltd[2015(323) ELT 431 (Bom)] 4. On the other hand, Shri. V.K. Shastri, Ld. Asstt. Commissioner(A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that since the appellant had not booked the amount as receivable in the book of account for the year 2007-08 and even though ....
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....cess paid duty was not directly passed on to these customers to whom the goods were sold but it might have been passed on to any other person. In my view when the amount was shown as receivable coupled with fact that the said excess paid duty was not recovered from the concerned customers, without any contrary evidence it cannot be presumed that incidence was passed on to any other person. It is not convincing that burden of an amount related to particular customer can be shifted to any other person. In the present cut throat competitive commercial world, if the goods are sold at a particular competitive price, just for sake of recovery of any liability the same cannot be loaded in the price arbitrarily and charged to any customers. No customer would accept such burden therefore the presumption of the lower departmental authority has no basis that the incidence of excess paid duty was passed on to any other person. I find that the evidence produced by the appellant such as booking of amount in....
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....refund claim which has been filed by the appellant on receiving Order-in-Appeal dated 3-12-2010, wherein the first appellate authority has reduced the tax liability on the appellant. The said Order-in-Appeal was not contested by the Revenue or the assessee. Subsequent to such an order, the refund claim has been filed by the appellant for an amount of Rs. 3,31,608/-, which is an amount paid in excess by the appellant on being pointed out by the audit party. 10. The first appellate authority, in this case, has held against the appellant only on the ground that the appellant has booked the amount in their Profit & Loss Account as expenses and such duty/Service Tax liability having paid subsequently, could not be collected by the appellant from their clients, but arguments have been discarded only on the ground that the appellant has not recorded the payments in balance sheet as 'receivables'. I find that this finding of the first appellate authority is not in consonance with the law inasmuch as Hon'ble High Court of Punjab & Haryana in the case of Modi Oil & General Mills - 2007 (210) E.L.T. 342 (P & H), has specifically held that the doctrine of unjust enrichment will not apply to....
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....lls Pvt. Ltd. (supra) would apply inasmuch as the certificate of Chartered Accountant produced by the appellant was not disputed by the Revenue authorities, by bringing on record any other opinion contrary to the Chartered Accountant's certificate. 9. I find that the various case laws cited by ld. Counsel are directly on the point. 10. In view of the foregoing and also the binding judicial pronouncements, I find that the impugned order is unsustainable and is liable to be set aside. Ranade & Co. (supra) 2. Heard both the sides. Even though several decisions were cited by both the sides relating to admissibility or otherwise of the refund claim on grounds such as the amount is not a duty but only a deposit; the amount was shown as expenditure in the balance sheet and whether such showing would amount to collection of the same from the customers or not and whether Service Tax was to be shown in the invoice or not etc. I feel that it is not necessary to consider all these decisions to come to a conclusion since in my opinion the facts in this case are clear enough to show that there was no unjust enrichment and refund claim is admissible. Firstly, I am in total agreement w....