TaxTMI 
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2025 (9) TMI 122
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....the claim made through jurisdictional range officer, it was observed that refund claim was not admissible for following reasons:- "(i) From the scrutiny of invoices issued from the factory to the warehouse, there is nothing on record to show that incidence of Central Excise duty has not been passed on to customers as the goods have been cleared to their own warehouse and from there the goods are sold on the fixed price on the strength of invoice wherein the MRP of the product is also mentioned. (ii) It is also not on record that the excess payment of duty has not affected the MRP of the goods cleared at high rate/excess payment. (iii) Further, the party has not submitted any proof along with the refund claim which can confirm that the duty incidence to the extent paid in excess, has not been borne by them." 2.3 Show cause notice dated 13.10.2016 was issued proposing as to why their refund claim dated 04.08.2016 for Rs. 17,25,830/- filed under Section 11B of Central Excise Act, 1944 should not be rejected. 2.4 The said show cause notice was adjudicated as per the Order-in-Original dated 17.10.2017 referred in para 1 above. 2.5 Aggrieved by the Order-in-Original revenue have....
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....m their warehouse was a pre-agreed one with their buyers and no excise duty was included in the same since it was much less than the MRP, less abatement of 35%. * The Adjudicating Authority has in his order observed that refund claim made by the appellant was pre-audited by the Department before sanction. * Impugned order questioning the veracity of the Chartered Accountant's certificate against unjust enrichment, he is not only questioning the integrity but has also undermined the position of the independent authority. * In their balance sheet & ledger account which were produced before the Commissioner (Appeals), clearly showed that excess duty paid as amount recoverable from Government. * Reliance is placed upon the following decisions- o Commissioner of Central Excise Vs Aquasub Engineering o CCE Vs Metro Tyres Ltd. 1996 (82) ELT 95 dismissed by the Hon'ble Supreme Court 1997 (94) ELT A51 (SC). o Triveni Chemicals Ltd. Vs Union of India & Anr. Civil Appeal No. 5836 of 2005. 3.3 Learned Authorized Representative reiterates the findings recorded in the impugned order. 4.1 I have considered the impugned orders along with the submissions made in appeal and during th....
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....t, 1944. 4.4 It is noticed that at the time of deciding the Ashish Rolling Mills case, the Hon'ble Gujarat High Court completely ignored the settled law laid down by the Hon'ble Supreme Court in the landmark judgment of Allied Photographics India Ltd. case. Moreover, relying on the Apex Court's decision (supra) the Jurisdictional High Court of Judicature at Allahabad, in the case of Sanat Products Limited vs. CCE [2015 (323) ELT 682 (All.)] has held that "Refund -Unjust enrichment - Appellant pleading that they have not recovered duty from customers, price being constant prior and after imposition of duty and hence unjust enrichment not applicable - Apex Court in case of Allied Photographics India Ltd. [2004 (166) E.L.T. 3 (S.C.)] laying down law that uniformity of price, before and after assessment, does not lead to inevitable conclusion that incident of duty not passed on Following aforesaid law settled by Apex Court and in absence of any decision to contrary, appeal of assessee dismissed - Section 11B of Central Excise Act, 1944" 4.5 It is well settled that in case of conflicting judgments of various High Courts, decision of jurisdictional High Court to be follow....
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....ed on by the manufacturer to the buyer or any other person by any kind. Chartered Accountant's certificate must explain as to how incidence of duty not passed on to buyer by showing cost structure, etc., which, in the instant case, is absent. No other evidence produced before the appellate authority by the respondent showing that the incidence of duty burden has not been passed on to any other person. Chartered Accountant's certificate cannot be a conclusive proof of the fact that duty incidence has not been passed on. Owing to overwhelming balance of proof in favour of the department against respondent's claim of non-passing of duty incidence to any person, I find that such a nonspecific/generic certificate issued by Chartered Accountant, cannot, in any way, come to rescue the respondent's claim. 4.9 Under the facts and circumstances of the present case read with ratio of the judicial pronouncements of the Hon'ble Apex Court and Jurisdictional High Court of Allahabad (supra), 1 again hold that the instant claim of refund filed by the respondent is hit by doctrine of unjust enrichment and the original authority has erroneously sanctioned and paid the refund am....
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....o the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing : Provided that no such adjournment 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 r....
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....under the provisions of the Customs Act. 46. The decision in Intex Technologies (India) Ltd. v. Union of India has followed Micromax (supra). The reasoning employed by the High Courts of Delhi and Madras does not appear to be sound. The scope of the provisions of refund under Section 27 cannot be enlarged. It has to be read with the provisions of Sections 17, 18, 28 and 128. 47. When we consider the overall effect of the provisions prior to amendment and post-amendment under Finance Act, 2011, we are of the opinion that the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the order of self-assessment and reassess the duty for making refund; and in case any person is aggrieved by any order which would include self-assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Act. 48. Resultantly, we find that the order (s) passed by Customs, Excise, and Service Tax Appellate Tribunal is to be upheld and that passed by the High Courts of Delhi and Madr....
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.....T.R. 225 (Kar.). 5. Learned Counsel for the department however brought to our notice judgment of Kerala High Court in case of Asstt. CCE & Ors. v. Krishna Poduval & Ors, (W.A. Nos 715 and 717 of 2005, judgment dated 20-10-2005) [2006 (1) S.T.R. 185 (Ker.)]. However when decision of this Court is already rendered, we would be bound by such decision." 4.8 It is noted that Commissioner (Appeals) has undermined the authority of the notified Chartered Account, he found that Chartered Accountant's Certificate not meeting the requirements of the law in terms of showing that portion of duty has not been based on the any other portion, he rejected the same. He further found that it is also settled law that the issue of unjust enrichment is to be decided by the concern authorities as per the provisions of statute the Chartered Accountant certificate can be evidence but not a decision on the issue of unjust enrichment. If the Chartered Accountant certificate made rejected by the concern authority, if not found adequate enough to establish that portion of duty has not been based on. In case of Emami Agrotech Ltd. [2023 (3) CENTAX 108 (Cal)] Hon'ble Kolkata High Court observed as follow....
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....s. Even if the goods were or were not to be assessed under Section 4A of Central Excise Act, the duty paid was passed on to the buyer of the goods. The presumption that incidence of the duty has been passed on to the buyer of the goods is statutory presumption as per Section 12A and 12 of the Central Excise Act, 1994. The said sections are reproduced below: "12A. Price of goods to indicate the amount of duty paid thereon.- Notwithstanding anything contained in this Act or 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. 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." 4.12 In the case of Shoppers Stop Ltd. {2018 (8) G.S.T.L. 47 (Mad.)], Hon'ble Madr....
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....tered Accountant's certificate, seems to indicate that the books of accounts and the relevant supporting documents have been verified. If, that was the position, then, we see no reason why the assessee could not produce the relevant invoices, i.e., supporting documents before the Tribunal, despite opportunity having been given, in that behalf. 9. In so far as the judgment of the Division Bench of the Delhi High Court in Hero Motocorp Limited v. Commissioner of Customs (Import and General) - 2014 (302) E.L.T. 501, is concerned, according to us, the said judgment does not help the cause of the assessee. A careful reading of the said judgment would show that the assessee in that case had placed on record, inter alia, apart from the Balance Sheet and the Chartered Accountant's certificate, self-attested invoice/packing list/bill of entry. As a matter of fact, the invoices placed on record, pertained both to pre and post import period. (See paragraphs 4 and 17 of the judgment). Therefore, the said judgment, instead of helping the cause of the assessee, would advance the case of the Revenue. 10. Furthermore, a Division Bench of this Court in Commissioner of Customs (Exports), Chennai....
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....eld that the buyer in turn would be entitled to refund only if he has not passed on the incidence of duty to any other person. Further the Tribunal held that the event which gives rise to cause of action for refund is payment of duty made in respect of goods cleared from the factory and once the duty burden had been passed on to the buyer at the time of clearance, issuance of credit note at a later point of time would not entitle the assessee to claim any refund. The Tribunal also held that burden of duty is normally passed by the manufacturer to the dealer and to the ultimate consumer. 11. The said assessee filed an application for reference to this Court, Madras and one of the questions was whether the Tribunal after finding the duty element on the discount to its dealers, the applicant had satisfied the requirements of proviso (d) to Section 11B(2) of the Act was entitled to be paid the amount claimed as refund. The second question being whether the Tribunal after finding that the burden of duty was passed on by the applicant to its various dealers by issue of credit notes was right in concluding that the ingredients of Section 11B were not satisfied. This Court by judgment da....
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....te that was raised post clearance will not be taken into account for the purpose of refund by the Department. This submission was not accepted by the Hon'ble Supreme Court by referring to the decision in Union of India v. Bombay Tyre International Private Limited [1984 (17) E.L.T. 329 (S.C.)], wherein it was held that trade discounts shall not be allowed only because they are not payable at the time of each invoice or deducted from the invoice price. Thus it was held that the assessee is entitled for filing a claim for refund on the basis of the credit notes raised by him towards trade discounts. Thus the issue in Addison & Co. Limited was as to whether the claim for refund on the basis of credit notes raised by the assessee towards trade discounts was admissible or not. The factual position was entirely different to that of the case on hand. The Hon'ble Supreme Court then proceeded to consider the case of the assessee therein who had admitted that the incidence of duty was originally passed on to the buyer and there is no material on record to show that the buyer to whom the incidence of duty was passed on by the assessee did not pass it on to any other person and that there is a ....
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....turer. 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 Consumer Welfare Fund is a mere pretence and not an honest exercise. By reading the Rules framed under Section 12D, it is pointed out, even a consumer, who has really borne the burden of tax and is in a position to establish that fact, is yet not entitled to apply for refund of the duty since the Rules do not provide for such a situation. The Rules contemplate only grants being made to Consumer Welfare Societies. Even in the matter of making grants, it is submitted, the Rules are so framed as to make it highly difficult for any consumer organisation to ....
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....mers. 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 Counsel for appellants-petitioners : It is pointed out that the manufacturer would have paid the duty at the place of "removal" or "clearance" of the said goods but the sale may have taken place elsewhere; if the purchaser wants to apply for refund - it is submitted - he has to go to the place where the duty has been paid by the manufacturer and apply there. It is also pointed out that purchasers may be spread all over India and it is not convenient or practicable for all of them to go to the place of "removal" of goods and apply for refund. True it is that there i....
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.... the assessee before us as the fact situation was entirely different. Similarly, the case in TVS Electronics Limited also pertain to the discounts offered by the assessee which is passed on to the distributors [buyers] by virtue of post sales credit notes. The Division Bench by referring to paragraph 14 of the judgment in Addison & Co. Ltd., wherein it was held that the assessee is entitled for filing a claim for refund on the basis of credit notes raised by them towards discounts, remanded the matter to decide the aspect of unjust enrichment. On facts, the said decision cannot be applied to the assessee's case. 16. In Daimler Chrysler India Pvt. Ltd., the Court found that apart from noting the decisions of this Court and the High Court of Andhra Pradesh remanded the matter to verify the documents. We find in the said decision that the appeal was restored to the file of the Tribunal for examining the issues highlighted in the judgment, one of which was whether the dealer has been found to be recovering the amounts or having given credit to the buyer, then whether raising of credit notes would negate the presumption raised in Section 12B of the Act or not. It was made clear th....