TaxTMI 
TaxTMI 
2023 (8) TMI 355
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.... is in relation to the refund claims filed by the appellant for the amounts as indicated in the Column 4 for the periods as indicated in Column 5. S.No Appeal No. Order-in-Appeal Amount (Rs.) Period 1 E/103/10 PII/PAP/193-195/09 dated 14-09-09 2,68,644/- Aug. to Nov. 2007 2 E/104/10 PII/PAP/193-195/09 dated 14-09-09 11,45,919/- Feb. To June 2008 3 E/2181/10 PI/RKS/158-162/10 dated 28-09-10 1.08,198/- October 2008 4 E/689/11 PI/RKS/158-162/10 dated 28-09-10 1,10,607/- November 2008 5 E/690/11 PI/RKS/158-162/10 dated 28-09-10 4,16,449/- February 2009 6 E/691/11 PI/RKS/158-162/10 dated 28-09-10 95,213/- December 2008 7 E/692/11 PI/RKS/158-162/10 dated 28-09-10 1,01,615/- January 2009 8 E/275/11 PI/RKS/234-236/10 dated 16-11-10 2,06,333/- April 2009 9 E/687/11 PI/RKS/234-236/10 dated 16-11-10 2,09,143/- May 2009 10 E/688/11 PI/RKS/234-236/10 dated 16-11-10 2,02,934/- June 2009 11 E/458/11 PI/RKS/06-08/11 dated 18-01-11 1,52,160/- July 2009 12 E/459/11 PI/RKS/06-08/11 dated 18-01-11 1,72,079/- A....
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.... following re-framed question of law for our consideration:- a. Whether on the facts and in the circumstances of the case and in law as the Tribunal justified in rejecting the claim of refund on the ground of unjust enrichment without having considered the Appellants submissions with regard to the CA certificate in support of its claim? 3. The appeal is admitted on the above substantial question of law. 4. At the request of parties, the appeal is taken up for final disposal at this stage as the dispute is within a very narrow compass. 5. The only grievance of the Appellant before us is that the impugned order dated 7 June 2016 is that its claim for refund is rejected on account of unjust enrichment in breach of principles of natural justice. It is submitted that its submissions and reliance upon the Chartered Accountant certificate to establish that the burden of duty has not been passed on by the Appellant's to its customers, though recorded has not been dealt with. Ms. Patil very fairly states that mere passing of credit notes would not amount to discharge of burden to establish that the duty has not been passed on customers and invites our....
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....a 1. 2.4 These refund claims were dealt by the lower authorities in the manner as stated in para 1.2, 1.3 & 1.4. 2.5 Appeals filed by the appellant in respect of refund claims filed by the appellant at Sr. 21 to 24 were dismissed by the tribunal. Subsequently the Hon'ble Bombay High Court has set aside the order of the tribunal and remanded the matter back to the tribunal for reconsideration on the basisof Chartered Accountant Certificate. 3.1 We have heard Shri Mayur Shroff, Advocate for the Appellant Assessee and Shri Sunil Kumar Katiyar, Assistant Commissioner, Authorized representative for the revenue. 3.2 Arguing for the appellant learned Counsel submits: • The Appellants had issued credit notes (which included the duty element) to their customers. Thus the duty element involved has been borne by the Appellants and not the customers. The Appellants have also shown the refund claimed as receivable in the books of account and not charged the same to profit and loss account. In the course of the proceedings before the lower authorities the Appellants have also produced Chartered Accountants certificate to that effect. It is thus manifest that there is no ....
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....ng the necessary details in respect of few of the transactions during the relevant period (Copy enclosed and marked EXB. III). It can be seen from the chart that the credit notes have been issued before the due date of payment of duty for the relevant invoices; as per the provisions of Rule 8 of the Central Excise Rules 2002. Still further; even in Commissioner of Central Excise, Madras Vs. Addison & Co. Ltd. - 2016 (339) E.L.T. 177 (S.C.) (Rel 3 & 3% of the said judgment), in one of the Appeal which has been disposed of by the common order, the Hon'ble Apex Court has observed that where the Chartered Acco's certificate has been produced in support of a claim and its genuineness has been accepted by the Tribunal then in such a case the burden of not having passed the duty stood discharged. The Hon'ble Bombay High Court, in its order EIB TIL dated 24th September 2018 (EXB.H) has relied on the same to answer the substantial question of law in favour of the Appellants and against the Revenue. The amount claimed as refund has also been shown as receivable in the books of accounts and not charged to profit and loss accounts and the Appellants have also produced Chartered Acc....
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....aims were treated as refund claims and the refund was rejected only by invoking the provisions of Section 11B of the Central Excise Act. Furthermore; as manifest from Para 3 of the Order-in-Appeal of the learned Commissioner (Appeals) the respondents had produced the copies of original invoices and the credit notes to demonstrate that the excise duty (representing credit notes) had not been passed on to the buyers. From the said para it is also manifest that the respondents had produced certificates from the customers certifying that they received credit notes representing excess excise duty. After considering the above evidence and after considering the Chartered Accountant's certificate produced by the Respondents the learned Commissioner (Appeals) has held in favour of the respondents. The facts noted in para 3 of the Order-in-Appeal and the findings based on factual evidence have not been assailed by the Department. The ground in the Departmental Appeal to the effect that the duty element is not mentioned in the credit notes and this indicates that the assessee has passed on the duty element to the buyers and accordingly the doctrine of unjust enrichment is applicable is th....
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....a Cylinders Pvt Ltd. [2010 (259) ELT 369 (Bom)] o ITC Ltd. [2019 (368) ELT 216 (SC)] • Appellant assessee has in their application claiming the refund filed in Form R specifically stated o We have paid the said amount of on sales invoices during the period from so and so to so and so. o The amount was originally paid vide Cenvat debit entry and PLA Entry No this and dated as the case may be. • Appellants have paid such excise duty voluntarily on its own volition and assessment. In view of the decision of the Hon'ble Supreme Court in case of Priya Blue industries and Hon'ble Bombay High Court in case of Maharastra Cylinders Pvt Ltd., the orders of assessment and refund cannot co-exist simultaneously, therefore for the refund claim to be filed and processed the assessment order needs to be varied. • Following decisions are also relied upon: o JSW Dharamatar Port Pvt Ltd. [2019 (20) GSTL 721 (Bom)] o Mafatlal Industries Ltd. [1997 (89) ELT 247 (SC)] o ALD automotive Pvt Ltd. [2018 (364) ELT 3 (SC)] 4.1 We have considered the impugned order along with the submissions made in appeal and during t....
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....ling a claim for refund on the basis of credit notes raised by him towards turnover discount. 15. The following provisions of Central Excise Act, 1944 are relevant for appreciating the point of unjust enrichment :- SECTION 11B. Claim for refund of duty. - "(1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] before the expiry of [one year] [from the relevant date] [in such form and manner] as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty had not been passed on by him to any other person : Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, (40 of 1991), such application shall be deemed to have been made under this sub-section as am....
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....der proviso to sub-section (2) shall be laid before each House of Parliament, if it is sitting, as soon as may be after the issue of the notification, and, if it is not sitting, within seven days of its re-assembly, and the Central Government shall seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder. 5. For the removal of doubts, it is hereby declared that any notification issued under clause f of the first proviso to sub-section (2), including any such notification approved or modified under subsection (4), may be rescinded by the Central Government at any time by notification in the Official Gazette.] [Explanation. - For the purposes of this section, - (A) "refund" includes rebate of duty of excise on ex....
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....r any other law for the time being in force, every person who is liable to pay duty of excise on any goods shall, at the time of clearance of the goods, prominently indicate in all the documents relating to assessment, sales invoice, and other like documents, the amount of such duty which will form part of the price at which such goods are to be sold. SECTION 12B. Presumption that the incidence of duty has been passed on to the buyer. - Every person who has paid the duty of excise on any goods under this Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods. SECTION 12C. Consumer Welfare Fund. - (1) There shall be established by the Central Government a fund, to be called the Consumer Welfare Fund. (2) There shall be credited to the Fund, in such manner as may be prescribed, - (a) the amount of duty of excise referred to in sub-section (2) of section 11B or sub-section (2) of section 11C or sub-section (2) of section 11D; (b) the amount of duty of customs referred to in sub-section (2) of section 27 or sub-section (2) of section 28A, or su....
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....n but is subject to the above requirement, as explained in the body of the judgment. Where the burden of the duty has been passed on, the claimant cannot say that he has suffered any real loss or prejudice. The real loss or prejudice is suffered in such a case by the person who has ultimately borne the burden and it is only that person who can legitimately claim its refund. But where such person does not come forward or where it is not possible to refund the amount to him for one or the other reason, it is just and appropriate that that amount is retained by the State, i.e., by the people. There is no immorality or impropriety involved in such a proposition. The doctrine of unjust enrichment is a just and salutary doctrine. No person can seek to collect the duty from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the Court is not meant to be exercised for unjustly enriching a person. The doctrine of unjust enrichment is, however, inapplicable to the State. State represents the people of the country. No one can sp....
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.... specified by the Central Government by a notification in the official gazette who are also entitled for refund of the duty of excise. A plain reading of Clauses (d), (e) and (f) of the proviso to Section 11B(2) shows that refund to be made to an applicant should be relatable only to the duty of excise paid by the three categories of persons mentioned therein i.e. the manufacturer, the buyer and a class of applicants notified by the Central Government. Clause (e) refers to the buyer which is not restricted to the first buyer from the manufacturer. The buyer mentioned in the above Clause can be a buyer downstream as well. While dealing with the absence of a provision for refund to the consumer in the rules this Court in Mafatlal Industries v. Union of India (supra) held as follows :- "98. A major attack is mounted by the learned counsel for petitioners-appellants on Section 11B and its allied provisions on the ground that real purpose behind them was not to benefit the consumers by refusing refund to manufacturers (on the ground of passing on the burden) but only to enable the Government to retain the illegally collected taxes. It is suggested that the creation of the Consu....
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.... the provisions of the Act go, they are unexceptionable. Section 12C which creates the Consumer Welfare Fund and Section 12D which provides for making the Rules specifying the manner in which the money credited to the Fund shall be utilised cannot be faulted on any ground. Now, coming to the Rules, it is true that these Rules by themselves do not contemplate refund of any amount credited to the Fund to the consumers who may have borne the burden; the Rules only provide for "grants" being made in favour of consumer organisations for being spent on welfare of consumers. But, this is perhaps for the reason that clause (e) of the proviso to sub-section (2) of Section 11B does provide for the purchaser of goods applying for and obtaining the refund where he can satisfy that the burden of the duty has been borne by him alone. Such a person can apply within six months of his purchase as provided in clause (e) of Explanation B appended to Section 11B. It is, therefore, not correct to contend that the impugned provisions do not provide for refunding the tax collected contrary to law to the person really entitled thereto. A practical difficulty is pointed out in this behalf by the learned co....
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....hment as the burden has not been passed on. The High Court's interpretation of Section 11B is also not correct." 4.4 Admittedly the application for the refunds have been filed by the appellant in respect of the goods which were cleared by them on payment of duty assessed by them on the value determined at the place and time of removal. It is settled law that the duty has to be determined and paid by the appellant assessee at the time of clearance of the goods on the invoice made by them. It is also settle principle of accounting that the accounts are maintained on the accrual basis and the appellant assessee recovers determined on the invoice from his customer the moment he clears the goods after assessing the duty on the invoice. Central Excise Duty, is indirect tax and is tax on the consumer of the goods. The assessee is only an intermediary in the entire chain, who collects the duty from his customer and deposits the same to exchequer. Thus the burden of the duty is always on the customer and that forms the basis of the principles of unjust enrichment enshrined in section 11B of the Central Excise Act, 1944. This principle of unjust enrichment has been held by the Hon'ble Ape....
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....nder and in accordance with the provisions of the respective enactment before the authorities specified thereunder and within the period of limitation prescribed therein. No suit is maintainable in that behalf. While the jurisdiction of the High Courts under Article 226 - and of this Court under Article 32 - cannot be circumscribed by the provisions of the said enactments, they will certainly have due regard to the legislative intent evidenced by the provisions of the said Acts and would exercise their jurisdiction consistent with the provisions of the Act. The writ petition will be considered and disposed of in the light of and in accordance with the provisions of Section 11B. This is for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it. The said enactments including Section 11B of Central Excises and Salt Act and Section 27 of the Customs Act do constitute "law" within the meaning of Article 265 of the Constitution of India and hence, any tax collected, retained or not refunded in accordance with the said provisions must be held to be collected, retained or not refunded, as the case may be, under the ....
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....nrichment is a just and salutary doctrine. No person can seek to collect the duty from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the Court is not meant to be exercised for unjustly enriching a person. The doctrine of unjust enrichment is, however, inapplicable to the State. State represents the people of the country. No one can speak of the people being unjustly enriched. (iv) ....... (v) Article 265 of the Constitution has to be construed in the light of the goal and the ideals set out in the Preamble to the Constitution and in Articles 38 and 39 thereof. The concept of economic justice demands that in the case of indirect taxes Central Excises duties and Customs duties, the tax collected without the authority of law shall not be refunded to the petitioner-plaintiff unless he alleges and establishes that he has not passed on the burden of duty to a third party and that he has himself borne the burden of the said duty. (vi) .... (vii) While examining the claims for refund, the fina....
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....evice to retain the illegally collected taxes by the State. This is equally true of Section 27 of the Customs Act, 1962." 4.6 The basic crux of the above referred decision of the Hon'ble Apex Court is that the claim for the refund of any excess duty paid should be made in accordance with the provision of the Section 11 B of Central Excise Act, 1944 by the person who has borne the burden of duty and adjudicated accordingly. It can be the first purchaser or the second purchaser or so on of the goods cleared on payment of duty sought as refund. The credit note issued by the manufacturer to the dealer/ customer who has procured from the manufacturer, is evidently not the person who would have borne the burden of duty claimed as refund. He would have passed on the burden to his customers and so on. Thus mere issuance of credit note is not a proof of discharging the burden of showing that the duty claimed as refund has not been borne by some other person. 4.7 Hon'ble Bombay High court has in the appellant case vide order dated 24.09.2018, referred to para 35 and 36 of the decision of the Hon'ble Apex Court in case of Addisson & Co. The said paragraphs are reproduced below: ....
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....y the Hon'ble High Court vide order dated while remanding the matter for reconsideration to the tribunal vide order dated 24.09.2018 in Central Excise Appeal No 49/2017 we refer to the Certificate of Chartered Accountant produced by the Appellant Assessee: From the above certificate what is evident that certain amounts paid towards central excise duty is shown as amount receivable in the books of account of the appellant. Said certificate is totally silent on the aspect as to who has borne the burden of duty as the same do not refer to any invoice or the credit notes issued by the appellant assessee. Further just an averment made to effect "receivable in book of accounts" would not be enough to say that burden of the duty has been borne by the appellant and none other than appellant. In case referred by in the Hon'ble Apex Court in para 35 above specific averment has been made that the Chartered Accountant had Certified about the return of the excess duty to the customers. While dismissing the appeal filed by Commissioner Central Excise, (Central excise Appeal No 100 of 2008 referred in the para 35 of the order of Hon'ble Supreme Court in case of Addisson) Hon'ble Bombay High Co....
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....Ltd., and negatived the relevant paragraphs of these decisions are reproduced below : Priya Blue "5. Under Section 27 of the Customs Act, 1962 a claim for refund can be made by any person who had (a) paid duty in pursuance of an Order of Assessment or (b) a person who had borne the duty. It has been strenuously submitted that the words "in pursuance of an Order of Assessment" necessarily imply that a claim for refund can be made without challenging the Assessment in an Appeal. It is submitted that if the assessment is not correct, a party could file a claim for refund. It was submitted that if the assessment is not correct, a party could file a claim for refund and the correctness of the Assessment Order can be examined whilst considering the claim for refund. It was submitted that the wording of Section 27, particularly, the provisions regarding filing of a claim for refund within the period of 1 year or 6 months also showed that a claim for refund could be made even though no Appeal had been filed against the Assessment Order. It was submitted that if a claim for refund could only be made after an Appeal was filed by the party, then the provisions regarding fili....
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....sional authority under the Act therefore, an order which is appealable under the Act is not challenged then the order is not liable to be questioned and the matter is not to be reopened in a proceeding for refund which if we may term it so is in the nature of execution of a decree/order. In the case at hand it was specifically mentioned in the order of the Assistant Collector that the assessee may file appeal against the order before the Collector (Appeals) if so advised." 5. Our attention has also been drawn to the Circulars issued by the Board as contained in the Customs Appraising Manual Volume V and Chapter 15 of the CBEC's Customs Manual of instructions which lay down that at times, when it is found that duty has been paid in excess than what was actually leviable on the goods, which excess payment may be due to lack of information on the part or importer/exporter or non-submission of documents required for claim of value or rate of duty or due to shortage/short landing, pilferage of goods, refund of excess amount of duty paid can be claimed by the importer/exporter under Section 27 of the Customs Act and further Board's Letter vide F. No. 55/98/70-Cus-IV, dated 25-8-....
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....er which has become final, the refund of duty cannot be claimed unless the order (whether it is a order of assessment, the adjudication or any other order under which the duty is paid) is set aside according to law. We are not convinced by the plea of the respondent that when an assessment is made in accordance with the claim made by the assessee, such an assessment cannot be challenged by him, as he cannot be said to be aggrieved by the order of the assessment, as it is the job of the proper officer to pass a correct assessment order irrespective of the claim made by the assessee and the grievance is from the assessment order and not from his claim especially when the Apex Court in the two decisions in the case of Priya Blue and Flock India, has categorically held that a refund is not maintainable unless and until the assessment order in pursuance of which the duty was paid has not been challenged." 4.9 Same view has been echoed by a three judges bench of Hon'ble Supreme Court has in case of ITC, Ltd. [2019 (368) ELT 216 (SC)] as follows: 35. Section 27 of the Act prior to amendment by Finance Act, 2011 provided for refund procedure. Any person could claim a refund of ....
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....reof or in the case of re-assessment, from the date of such re-assessment. The second proviso to Section 27 makes it clear that limitation of 1 year shall not apply where any duty or interest has been paid under protest. 37. Under Section 27(2)(a) it is incumbent upon the applicant to satisfy that the amount of duty or interest of which refund has been claimed, had not been passed by him to any other person, the provision aims at preventing unjust enrichment. 38. No doubt about it that the expression which was earlier used in Section 27(1)(i) that "in pursuance of an order of assessment" has been deleted from the amended provision of Section 27 due to introduction of provision as to self-assessment. However, as self-assessment is nonetheless an order of assessment, no difference is made by deletion of aforesaid expression as no separate reasoned assessment order is required to be passed in the case of self-assessment as observed by this Court in Escorts Ltd. v. Union of India & Ors. (supra). 39. In Collector of Central Excise, Kanpur v. Flock (India) Pvt. Ltd. - 2000 (120) E.L.T. 285 (S.C.) = (2000) 6 SCC 650, the question which came up for consideration ....
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....ollector (Appeals) if so advised." (emphasis supplied) 40. In Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) - 2004 (172) E.L.T. 145 (S.C.) = (2005) 10 SCC 433, the Court considered unamended provision of Section 27 of the Customs Act and a similar submission was raised which was rejected by this Court observing that so long as the order of assessment stands, the duty would be payable as per that order of assessment. This Court has observed thus : "6. We are unable to accept this submission. Just such a contention has been negatived by this Court in Flock (India) case (2000) 6 SCC 650. Once an order of assessment is passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 28 and/or modified in an appeal, that order stands. So long as the order of assessment stands the duty would be payable as per that order of assessment. A refund claim is not an appeal proceeding. The officer considering a refund claim cannot sit in appeal over an assessment made by a competent officer. The officer considering the refund claim cannot also review an assessment order. 7. We also see no substance....
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....journment shall be granted more than three times to a party during hearing of the appeal.] (2) Every appeal under this section shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf." 43. As the order of self-assessment is nonetheless an assessment order passed under the Act, obviously it would be appealable by any person aggrieved thereby. The expression 'Any person' is of wider amplitude. The revenue, as well as assessee, can also prefer an appeal aggrieved by an order of assessment. It is not only the order of re-assessment which is appealable but the provisions of Section 128 make appealable any decision or order under the Act including that of self-assessment. The order of self-assessment is an order of assessment as per Section 2(2), as such, it is appealable in case any person is aggrieved by it. There is a specific provision made in Section 17 to pass a reasoned/speaking order in the situation in case on verification, self-assessment is not found to be satisfactory, an order of re-assessment has to be passed under Section 17(4). Section 128 has not provided for an appeal against a speaking order but agai....
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....raw materials. In the course of the manufacturing activity, waste paper/broke arises which are recycled in the manufacturing process by making pulp. Sometimes, after entry in the RG 1 register, the paper is found to be defective and incapable of being sold and as such is required to be reprocessed and if that is not possible, then it is rejected and has to be re-pulped and recycled. 8. The appellant had been paying duty on paper cleared from its factory. The rate of duty of paper manufactured from conventional and unconventional raw material differed. The appellants availed exemption under Notification No. 67/95-C.E., dated March 16, 1995 as to the duty in respect of waste paper/fresh broke. By Notification No. 6/2000-C.E., dated March 1, 2000 complete exemption was granted in respect of paper up to the specified quantitative limit manufactured from unconventional raw materials. Upon receipt of a letter dated March 30, 2001 from the Superintendent of Central Excise, the Appellant examined the matter and realized the mistake committed by it in availing the exemption under Notification No. 67/95-C.E. in respect of waste paper/broke utilized in the manufacture of paper cleare....
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....nd of Rs. 1,01,615/- with this office on 18.12.2009 on the basis of the duty paid on Fibre Cement Corrugated Sheets / Flat Sheets / Accessories, which were cleared by the claimant to their customers during the period from 01.01.2009 to 31.01.2009. The said refund claim of the claimant was sanctioned vide OIO No. ADJ/291/KOP-1/2009 (256/REF/2009) dtd. 25.02.2010. However the Department has not accepted the OIO dtd. 25.02.2010; as the said OIO is not legal, proper and correct on the grounds that :- 1. The Assistant Commissioner, Central Excise, Kolhapur I Division had not independently examined the Refund claim and not given any findings regarding admissibility of refund. claim or unjust enrichment etc. and therefore, the Order-In- Original is not a speaking order and not a legal and correct Order-In-Original. 2. The Commissioner (Appeals), Pune II (Kolhapur)'s Order-In- Appeal No.P-II/PAP/193 to 195/2009 dt. 14.09.2009 is relied upon by the Assistant Commissioner, Central Excise, Kolhapur I Division while granting the refund in the present Order-In-Original. This refund claim was not case of consequential refund by following Commissioner (Appeal)'s said Ord....
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.... of Central Excise Act, 1944. The claimant is hereby directed to submit their written reply within 07 days from the date of receipt of this Notice and personal hearing is fixed in the matter on 18.11.2010 and 19.11.2010 at 11.00 AM. They are requested to produce all the evidences, upon which they intend to rely in support of their defense, at the time of showing cause. If no cause in shown against the action proposed to be taken within 07 days or if they fail to appear before the adjudicating authority when the case is posted for hearing, the same will be decided Ex-parte on the basis of evidence available on records. This notice has been issued to the assessee without prejudice to any other action that may be taken against them under the Central Excise Act, 1944 and Rules made there under and any other law for the time being in force in India." In para 2 of the show cause notice specific averment has been made that the refund claim was not the case of consequential refund arising out of the order of the appellate authority. In para 3, specifically it has been stated that no documents such as contract etc. evidencing the fact that rate difference was o....