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TMI Blog2009 (5) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Excise Rules, 2002 on excisable goods manufactured and cleared by them through their depot sales and also through direct sales from the factory gate, on the ground that they were unable to determine the final value of such excisable goods at the time of clearance from the factory gate, as discounts were not known at the time of removal. The respondent offered various discounts such as quantitative discounts, seasonal discounts according to the month. It was also submitted by the respondents that the final price will be arrived at on basis of quantity lifted etc. Discount will be given based upon the quantity lifted at the month end. For such provisional assessment, the respondents executed bond with bank guarantee. The said provisional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (A) in his findings has observed that the issue of unjust enrichment has been decided by him in OIA No. 275/07 dated 24-12-2007 against the assessee, since there was no provisional assessment for the earlier period. Whereas for the period of provisional assessment, though the practice of allowing discount to the distributors remains the same and duty is not passed on to ultimate assessee, Commissioner (Appeals) decided the issue in favour of assessee. (iii) Commissioner (Appeals) OIA is not legal and proper in not appreciating the fact that in the absence of concrete proof to show that the burden of duty was not passed on to the ultimate consumer, unjust enrichment will accrue in view of Section 11B(2)(d) read with Section 12B of Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have carefully gone through the records of the case and oral written submissions. I find that the original authority has rejected the refund claim by applying principle of unjust enrichment on the ground that - (i) Although value of goods would have been reduced to the extent of deducting the value of credit notes issued for that particular sale transaction, duty would have been paid by the final customer on the original sale value (i.e., non discounted value) and the distributor is the real beneficiary and not the customer. (ii) that once burden of duty initially has been passed on to the customers, at the time of clearance of goods, issuance of credit notes is immaterial as held by Honourable Tribunal Delhi in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment for it to have been passed on to the ultimate consumer. On the other point of credit notes, I find that the three Judgments cited by the appellants as detailed below are in favour of appellants. (i) S. Kumar s Ltd. v. C.C. Ex. - 2003 (153) E.L.T. 317 (T) (ii) C.C. Ex. v. lpca Labs - 2005 (180) E.L.T. 33 (T. - Delhi.) (iii) Siltap Chemicals Ltd. v. C.C. Ex. Vadodara-II -2007 (7) S.T.R. 610 (T-Mumbai) I also find that on a similar issue for the same appellant vide order-in-appeal no. 275107 dated 24-12-07 I have decided the issue against the appellant. In the said earlier appeal there was no provisional assessment where as in the present appeal there is provisional assessment on the subject. The appellants had op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he claimant of the refund claim to prove that he has not passed on the incidence of duty to their customers. In this case we find that respondent has produced a certificate issued by the Chartered Accountant dated 24-7-2007 before the ld. Commissioner (Appeals). On mere perusal of Chartered Accountant s certificate, we find from the same, the essence of non-passing of the incidence of duty to their customer, has been considered by the ld. Commissioner (Appeals). 7. In the absence of any evidence contrary to Chartered Accountant s certificate, we find that the impugned order of the ld. Commissioner (Appeals) is correct and legal. For the foregoing reasons, we find that the Revenue s appeal is without merits and therefore the same is reject ..... X X X X Extracts X X X X X X X X Extracts X X X X
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