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TMI Blog2014 (2) TMI 877X X X X Extracts X X X X X X X X Extracts X X X X ..... a subsequent date is unexceptionable. Besides as rightly observed by the Tribunal the subsequent fluctuation in the prices of the commodity can have no relevance whatsoever so far as the liability to pay excise duty is concerned - Decided against assessee. - E/2157 & 2200/03, E/3108/06 - - - Dated:- 30-9-2013 - P R Chandrasekharan And Anil Choudhary, JJ. For the Appellant : Shri Gajendra Jain, Adv. For the Respondent : Shri K M Mondal PER : P R Chandrasekharan These are 3 appeals, two filed by Revenue and one filed by the assessee, M/s. Videocon International Ltd. (Videocon in short) directed against Orders-in-Appeal No. BPS(135)423/2001 dated 12-5-2003 and RKR(109)103/2006 dated 21-7-2006 passed by the Commissioner of Central Excise (Appeals), Aurangabad. 2. These appeals were earlier considered by this Tribunal and this Tribunal vide Order No.A/352 to 355/2010/EB/CII dated 4-11-2010 had allowed the Revenue's appeals and dismissed the assessee's appeal. Against the said decision of the Tribunal, Videocon filed appeals before the hon'ble High Court of Bombay and hon'ble High Court vide Orders dated 22-3-2012 in Central Excise Appeal Nos. 88 and 91 of 201 set as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority held that an amount of Rs. 12,12,613/- was time barred and the balance amount of Rs. 1,07,98,905/- was rejected on the ground of unjust enrichment. On appeal, the lower appellate authority held that refund claim to the extent of Rs.1,07,98,905/- is not hit either by time bar or unjust enrichment clause. Thus the issue for consideration before us is whether the appellant is eligible for the refund of Rs. 1,07,98,905/- and if so, whether they are also eligible for payment of interest thereon. 4. The contention of the ld. Counsel for the Respondent can be summarized as follows:- i) The depots were offering higher discounts for ex-depot sale when compared with discounts being offered for ex-factory sale and the factory was not aware of such higher discounts. There was a communication gap between the factory and the depots with respect to the exact discounts being offered and it took some time to adjust and this was the main reason for excess payment of excise duty for the period October 96 to June 97. ii) The Respondents were regularly filing price declarations in terms of Rule 173C of the Central Excise Rules, 1944; however such declarations were not accurate in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 5. The ld. Special Consultant for the Revenue made the following submissions; a) A larger Bench of this Tribunal in the case of S. Kumars Ltd. 2003 (153) ELT 217 considered a question whether post-clearance adjustment like issuance of credit notes or cheques by the assessee who is claiming refund to buyer of the goods would help the assessee to get over the bar of unjust enrichment under secion11B of the Central Excise Act and held that issuance of credit notes would not help the assessee to get over the bar of unjust enrichment following its earlier decision in the case of Sangam Processors (Bhilwara) Ltd. The same ratio was followed in Grasim Ind. (Chemical Divn.) case 2003 (153) ELT 694 by another Larger bench of this Tribunal. This Tribunal in the case considered an issue wherein the assessee passed on the duty incidence to the customers at the time of clearance of the goods. Subsequently they issued credit notes in respect of the duty incidence to the customers and filed refund claim. This claim was rejected and the Tribunal upheld the rejection. The said decision was affirmed by the hon'ble apex Court. b) The hon'ble Apex Court in the case of Rainbow Industries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quently, the appellants found that the goods were actually sold at a lesser price due to passing of higher discounts to the customers. Consequently a revised price declaration was filed by the appellants on17-6-97, revising the assessable value for the period in question." 6.3 From these grounds adduced in the appeal memorandum, it is clear that the price initially declared to the department was the price prevalent at the depot at the time of removal of goods from the factory. This is further supported by the fact that this was the price at which the goods were sold to the dealers form the depot. Otherwise, there was no need to issue credit notes subsequent to the sale of the goods. It is an admitted position that the appellant allowed higher discounts in view of the cut throat competition in the colour TV market. If there was cut throat competition due to which the prices had to be reduced, how can it be known in advance so as to be communicated to the buyers in advance? The very fact that the reduction in price was passed on to the buyers subsequent to the sale through credit notes itself is a clear pointer to the fact such price reduction was not known in advance. No trade cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er which does not involve sale; or (v) removes goods of the same kind and quality from his factories located in the jurisdiction of different Commissioners of Central Excise or Assistant Commissioners of Central Excise or Deputy Commissioner of Central Excise he shall file, with the proper officer a declaration, in such form and in such manner and at such interval as the Central Board of Excise and Customs or Commissioner of Central Excise may require, declaring the value of the goods under section 4 of the Act, the duty and other elements constituting the price of such goods along with such other particulars as the Central Board of Excise and Customs or the Commissioner of Central Excise may specify. (2) The assessee shall certify in each such document that the amount indicated in such document represents the price actually charged by him and that there is no additional consideration flowing directly or indirectly from such sales over and above what has been declared. (2A) Every assessee who produces, manufactures or warehouses goods notified under Section 4A of the Act shall file with the proper officer a declaration in such form and in such manner and at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate or such value (which may not necessarily be the rate or price declared by the assessee) as may be indicated by him, if such assessee executes a bond in the proper form with such surety or sufficient security in such amount, or under such conditions as the proper officer deems fit, binding himself for payment of difference between the amount of duty as provisionally assessed and as finally assessed It is not the case of the appellant before us that they opted for provisional assessment under Rule 9B in the instant case. 6.5 From the above statutory provisions, it can be seen that Declaration of correct price under Rule 173C was not an empty formality but a statutory requirement to be conformed and complied with by every assessee. 6.6 It is a settled position in law as held in Rainbow Industries case cited supra that revision of price list/declaration can be effective only prospectively. Applying the ratio of the said decision to the facts of the present case, the revised price declaration filed by the appellant indicating a higher discount can only be effective from its date of filing, that is, 17-6-97 and cannot be applied retrospectively from October 96 onwards. 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im to any other person. The passing on will occur only if the person who claims refund of duty has shifted the burden to another. There can be no passing on of the incidence of duty if he merely reduces his burden by receiving the refund. Accordingly it was held that the Tribunal was in error in holding that the assessee having proved that it had not passed on the incidence of duty to its buyers, it was not entitled to refund even when all the other conditions required to be satisfied under section 11B had been satisfied. The issue before us in the present case is completely different. The question before us is whether passing of credit notes subsequent to the sale of goods where duty incidence or not. Further, the said decision of the hon'ble High Court has been challenged by the Revenue before the hon'ble Apex Court by way of SLP and leave has been granted by the hon'ble Apex Court as reported in Commissioner v. Addison Co. -2003 (152) ELT A94 (SC). It is a settled position in law that once an appeal has been admitted by the hon'ble Apex Court against a decision of the Tribunal or High Court, then the said decision is in jeopardy and cannot form a precedence as held by the hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e customers do not make the bar of unjust enrichment inapplicable. It was in that context it was held by the hon'ble Rajasthan High Court that once the assessee leads a reliable evidence, the presumption enacted by sec. 12B stands sufficiently rebutted and cannot survive ad infinitum. IN the case before us, the facts are completely different. Here the payment of duty at higher amounts were made by the buyers and the assessee sought to retrospectively amend the prices declared after a gap of about 9 months and pass on the price differential through credit notes. Thus the facts are completely different than that involved in the A.K. Spintex case cited supra and therefore, the ratio of the said decision cannot apply. 6.10 It is a settled position in law that the ratio of any decision must be understood in the background of the facts of that case and a case is only an authority for what it actually decides, and not what logically follows from it and a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. In Bharat Petroleum Corporation Ltd. another v. N.R.Vairamani another - AIR 2004 SC 4778, it was held that a decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Therefore, this decision of the Tribunal also has no relevance. 6.12 In the Sangam Processors (Bhilwara) Ltd. case, this Tribunal considered a case of refund of excise duty. In the said case, the assessee paid duty on processed fabrics at higher rates by calssifying the goods under CETH 55.08 of the Tariff during 1-3-86 to 12-5-86 and passed on the duty incidence to its buyers. Subsequently, the duty rates were reduced and a notification was issued under section 11C of the Central Excise Act waiving the requirement of paying higher duty during 1-3-86 to 12-5-86 was issued on 21-12-88 because of the fact that as a general practice, lower duty had been collected during that period. The assessee issued credit notes to the buyers passing on the benefit of duty reduction and claimed refund of the higher duty paid. It was held that refund would not be admissible even though credit notes had been issued to the buyers passing on the benefit of duty reduction. The said decision was affirmed by the hon'ble Apex Court. 6.13 Subsequently a question arose for consideration before a Larger Bench of this Tribunal in S.Kumar's Ltd. case as to whether post-clearance adjustment like issuance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Indo Hacks Ltd. v. Collector of Central Excise, Hyderabad - 1986 (25) E.L.T. 69 (Tribunal) and it seems to us that the Tribunal's view that the duty is chargeable at the rate and price when the commodity is cleared at the factory gate and not on the price reduced at a subsequent date is unexceptionable. Besides as rightly observed by the Tribunal the subsequent fluctuation in the prices of the commodity can have no relevance whatsoever so far as the liability to pay excise duty is concerned." 6.15 If one applies the ratio of this decision to the facts of the present case, the subsequent reduction in prices by passing on higher discounts to the customers after the clearance of the goods cannot alter the excise duty liability of the appellant M/s Videocon. This decision of the hon'ble Apex Court was never brought to the notice of the Rajasthan High Court and the Madras High Court at the time of consideration of A.K. Spintex case and Adison Co. case. 7. In view of the foregoing discussion, we allow the appeals filed by Revenue and reject the refund claim along with interest thereon of the assessee, M/s. Videocon International Ltd. (Order pronounced in the Court on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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