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TMI Blog2011 (3) TMI 1443X X X X Extracts X X X X X X X X Extracts X X X X ..... f clearance of goods to the customers, but would be offered only later. Once the party becomes entitled to quantity discount, the assessee issues credit notes. As regards cash discounts based on the scheme, the buyers would deduct discount at the time of payment of price for the goods. Therefore, the assessee applied to the Superintendent of Central Excise, Bangalore-II Division, on 20-7-2000 requesting for provisional assessment as the discounts were known only after a lapse of certain time and were not known at the time of dispatch of goods from the factory. In pursuance of such requests he was called upon to execute B-13 bond with the Deputy Commissioner for provisional assessment. 3. During the period from 1-11-2000 to 31-3-2001 and 1-4-2001 and 31-12-2001, the assessee offered discounts to their customers. For the period from 1-1-2000 to 31-3-2001 they filed an application for refund on 29-11-2001, a second claim for the period from 1-4-2001 to 31-12-2001 was filed on 22-2-2002. The Department in reply stated that the refund claim was not in order as necessarily the documents were not filed. Hence, the assessee withdrew his claim for refund filed on 29-11-2001 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wise even if the first claim is held to be barred by time still the cash claim would not be barred by time. It is only the claim anterior to 7-3-2001 which will be barred by time and the assessee would be entitled to refund for the period from 7-3-2001 to 31-3-2001. 6. Per contra, the learned counsel appearing for the revenue submitted that once a claim made is withdrawn and a fresh claim is made it cannot be treated as a continuation of the earlier claim and therefore the order passed by the authorities holding that the claim is barred by time cannot be interfered with. In so far as the claim on merits is concerned any credit note raised subsequent to the raising of the invoice and clearing of the goods cannot be taken note of in deciding whether the benefit has been passed on to the customers or not. That is the view expressed by the CESTAT in the case of Addison, though it is set aside by the Madras High Court, now the matter is pending in appeal before the Apex Court and therefore the Tribunal was justified in following its earlier Judgment and denying the relief to the assessee. Therefore two substantial questions of law which arise for consideration in this appeal are a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im is barred by time to the extent of rejecting the claim from 7-3-2001 to 31-3-2001, the said order is incorrect. To that extent, the order passed by the authorities requires to be modified. Point No. 2 The claim for refund of excise duty pre-supposes that excise duty in excess of what is legally due has been paid. The demand on which the excise duty is paid is on the clearance of the goods. Necessarily that is paid on the amount mentioned in the invoice. The claim for refund arises when subsequently if it is shown that what is paid is an excess of what is legally payable. Section 11-B deals with claim for refund of duty. Sub-section (1) Section 11-B provides that any person claiming refund of any duty of excise paid on such duty may make an application for refund of such duty to the appropriate authority before the expiry of one year from the relevant date in the prescribed form and the application accompanied by such document to establish that the amount of duty of excise if any paid, in relation to which it refund is claimed or collected from or paid by him and the extent of such duty has not been passed on to him by any person. Therefore the condition precedent for making a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot so passed on, as the case may be. Where the burden of 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 ultimately claim its refund. But whether such person does not come forward or where it is not possible to refund the amount to him for one or the other reasons, it is just and appropriate that that amount is retained by the State, that is, by the people. There is no immorality or impropriety involved in such proposition. Where such a claim is made, it would be wholly permissible for the Court to call upon the assessee to establish that he has not passed on the burden of duty to a third party and to deny the relief of refund if he is not able to establish the same, as has been done by this Court in I.T.C. In this connection it is necessary to remember that whether the burden of the duty has been passed on to a third party is a matter within exclusive knowledge of the manufacturer. He has the relevant evidence - best evidence - in his possession. Nobody else can be reasonably called upon to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be entitled to the refund of the said amount. The finding of the CESTAT that the events subsequent to the clearance of the goods, raising of the invoice are relevant in deciding the question of refund of duty is not warranted from any of the statutory provisions. On the contrary, the basis for claim for refund is excess duty is to be paid at the time of clearance. As indicated in the invoice, it is only a subsequent event which makes that demand illegal, not warranted, not authorized and gives the assessee a right to seek for refund. In that context, if credit notes are raised and benefit is passed on to the customer, thus not passing on the burden of excise duty the assessee is entitled to refund of the same. Though the adjudicating authority or the appellate authority denied relief relying on the Judgment of the CESTAT in Addison's case, when that Judgment has been set aside by the Madras High Court, the Tribunal was in total error in following the Judgment and dismissing the appeal of the assessee. Merely because the matter is now pending before the Apex Court, that is not a reason to disregard the Judgment of the High Court. The High Court has set aside the Judgment render ..... X X X X Extracts X X X X X X X X Extracts X X X X
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