2017 (3) TMI 553

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.... excess payment of duty occurred because they had issued invoices without considering the quantity discounts which were known and available before the clearance. It was argued that the said discounts were not mentioned in the purchase order and in the acceptance order. The said discounts were not passed on through the invoices but were passed subsequently by way of issue of credit notes to the customers. It was argued that the said discounts were known to the buyer and seller, both, prior to the removal of goods. It was argued that the Commissioner (Appeals) has rejected the refund on the ground that the sales/production order is the final contracted price and any document on transaction existing prior to the acceptance order and concerning to it has no relevance. He argued that on the purchase orders, market support discount was appearing in the remarks of the sales/production order. He argued that the Commissioner has wrongly observed that once the appellant cleared the goods on payment of appropriate duty of excise as shown in the Central Excise invoices, subsequent reduction in price of goods for any reason is not acceptable. It was argued that since the quantity discount was k....

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....n the case of Addison & Co. Ltd. (supra), we find that the appellant had relied on para 35 & 36 of the said decision. It is noticed that in para 35 & 36 of the said decision of the Hon'ble Apex Court is dealing with Civil Appeal No.8488 of 2009. The Hon'ble Apex Court has observed as follows: 35. The respondent-Assessee is a 100 per cent Export Oriented Unit (EOU) manufacturing cotton yarn. The respondent filed an application for refund of an amount of Rs. 2,00,827/- on 14-8-2002 on the ground that it had paid excess excise duty at the rate of 18.11 per cent instead of 9.20 per cent. The Assessee initially passed on the duty incidence to its customers. Later the Assessee returned the excess duty amount to its buyers which was evidenced by a certificate issued by the Chartered Accountant on 2-8-2002. The refund claim was rejected by the Deputy Commissioner of Central Excise, Kolhapur Division vide an order dated 24-9-2002 on the ground that the Assessee did not submit either the credit notes or the Chartered Accountant's certificate at the time of filing the refund application. Not satisfied with the genuineness of the documents the Deputy Commissioner rejected the refu....

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....ntral Excise Appeal Nos. 44 and 38 of 2004 and 18 of 2005. These three appeals were disposed of by the High Court in terms of its earlier judgment dated 19-2-2014. 25. The Assessee i.e. Andhra Pradesh Paper Mills Ltd. manufactures Paper and Paper boards. There is no dispute that excise duty is paid by the Assessee and the same is passed on to its buyers. Applications were filed by the Assessee for refund of amounts towards trade discounts that were given to its buyers. The refund claim is on the basis of credit notes raised by the Assessee subsequent to the sale/removal of goods. The credit notes that were raised by the Assessee were towards trade discounts which included the component of excise duty. The refund claims of the Assessees were rejected by the Assistant Commissioner of Central Excise, Rajahmundry Division. The Commissioner Customs, Central Excise (Appeals), Hyderabad confirmed the said orders in the appeals filed by the Assessee. The Customs, Excise and Service Tax Appellate Tribunal, South Zonal Division, Bangalore dismissed the appeals filed by the Assessee. 26. The Assessee approached the High Court of Andhra Pradesh by filing Central Excise Appeal....

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....or a refund. 32. The Assessee approached the Commissioner Appeals, II Customs & Central Excise, Jaipur by filing an appeal which was rejected by an order dated 27-2-2003. The Customs, Excise and Service Tax Appellate Tribunal by its order dated 11-5-2005 allowed the appeal filed by the Assessee on the ground that the incidence of duty was not passed on by the Assessee to the customers. The customers protested to the charging of the net duty payable at 8.8 per cent instead of 8 per cent in spite of the notification issued on 11-6-2001. This protest was made without any delay so the question of passing the incidence of duty by the owners of the fabric to their customers does not arise. 33. In Central Excise Appeal No. 34 of 2005 filed by the Union of India through Commissioner of Central Excise, Jaipur, the High Court of Judicature for Rajasthan at Jodhpur confirmed the order of the Central Excise and Service Tax Appellate Tribunal. Challenging the said judgment of the High Court dated 26-11-2008, the Union of India has filed the above Appeal. The contention raised by the Revenue before the High Court regarding the presumption under Section 12-B of the Act was rejec....

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....e carefully considered the impugned order-in-original, refund claims filed by the appellants and various submissions made by the appellants. The issue before me is regarding finalization of the provisional assessment order and whether the credit notes issued for the period covered under provisional assessment attracts unjust enrichment. I find from the order-in-original that in spite of repeated reminders and requests, the required information and supporting documents such as Credit Notes, Purchase Orders, Invoices, etc. were not submitted by the appellants. I find that even while filing appeal and also till date, the same has not been done. I find that the order-in-original is well reasoned and speaking and the appellants have not brought out an iota of evidence to rebut the same. Therefore I am left with no alternative than to uphold the order-in-original which has been passed after careful examination of the records. 5. On merits, I find that the appellants have just submitted to purchase orders along with the appellants sales/production orders. On perusal of the purchase orders with sales/production orders, I find that amount shown in the purchase orders after giving t....