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TMI Blog2015 (9) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... hallenged by the Revenue before Tribunal. The Tribunal disposed of the Revenue's appeals by observing as under :- "5. We have carefully considered the rival submissions and perused the records. The basic point of dispute in this case is as to whether this is a case of retrospective downward revision of prices by giving discounts not known at the time of removal or this is a case where the trade discounts, in question, were known before removal and the same were given to the customers later only for the reason that the same could be quantified only subsequently and at the time of removal, the same could not be quantified. If former is the case, the Apex Court's judgment in case of MRF v. CCE, Madras reported in 1997 (92) E.L.T. 309 (S.C.) would apply and if the latter is the case, the judgment of Apex Court in case of Union of India v. MRF reported in 1995 (77) E.L.T. 433 (S.C.) would apply. 6. We find that the factual position is as to whether the cash discounts, quantity discounts, and other trade discounts, whose deduction is sought from the assessable value, and on the basis of which the refund of duty has been claimed, were known at the time of removal or not, has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty claimed as refund in respect of various buyers pertaining to the period 1-4-2010 to 30-11-2010. During the present appeal proceedings, the appellant has also produced the copies of the invoices, relevant credit notes, transfer vouchers and customer ledger on sample basis to substantiate their contention that the discount policies were known to the customers at the time of removal of the goods and only quantum was ascertained at a later date which was time to time extended through credit notes. To examine their contention, I observe that the appellant has issued credit Note No. GP-09-10-15 dated 8-10-2010 to M/s. Cannic Steel Ind., Srinagar passing on a total quantity discount of Rs. 16,691/- in respect of total sale of 41.427 MT of goods during the month of September, 2010. The appellant has also enclosed invoice-wise detail of quantity cleared to Cannic Steel Industries during the month of September, 2010. On a perusal of the above said credit note, discount policy relevant to the period, the ledger account and relevant transfer voucher passed on 20-10-2010, I find that the quantity discount @ Rs. 400/- per MT given by the appellant is in accordance with the discount policy c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty on the ground of unjust enrichment holding that the burden of duty has been passed on at the time of sale to the dealers and further to ultimate buyers by the dealers because there is no material placed on record by the appellant to know as to how the dealers accounted for the cost of purchase in their books. It has been held that it is highly improbable for a dealer to incur the cost of purchase which included the element of duty in addition to the purchase price without passing on its burden to its buyers. I do not agree with the findings of the adjudicating authority as it is evident from the documents like invoices, credit notes and party-wise ledgers produced by the appellant during these proceedings on sample basis that although the appellant initially charged the duty from their buyers on the invoices raised at factory gate at a price without claiming the benefit of admissible discounts, but subsequently they refunded the excess duty charged on the such admissible trade/quantity discounts to the customers by way of issuing credit notes. I observe that Pavan K. Garg & Co., Chartered Accountants in the Certificate dated 16-1-2010 have also certified that the appellant had n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts available on record and following the ratio of the aforementioned court rulings, I hold that provisions of unjust enrichment are not applicable to the present case since the duty of Excise claimed to be excess paid in the instant appeal has been credited back to the buyers account by the appellant by way of issuing the credit notes. However, the adjudicating authority shall allow the refund of duty, as admissible, after due verification of all the credit notes and relevant accounting ledgers to ascertain that burden of duty has not been passed on by the appellant to their customers." 5. Revenue in their memo of appeal have referred to certain instances where the discounts have been given even though cases where the quantity sold was less than the quantity mentioned in discount policy. Ld. Advocate for the respondent explains that the discounts are given on the TOTAL quantity sold, which may be split to various quantities in different invoices raised at different times. He also explains that sometimes the orders are placed by one person and the invoices are issued to two different parties, but the total quantity for the purpose of discounts is attributed to that one person. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that as the appellant had originally recovered the duty amount from their customers, who might have taken the credit, the provisions of unjust enrichment would apply. They have further pleaded that inasmuch as the discount is always relatable to the value and not to the duty, the recovery of the entire duty from the customers and the grant of refund to the assessee would amount to unjust enrichment of the assessee. 7. We find that the assessee's customers have taken a categorical stand and have also produced certificates before Commissioner (Appeals) that they are not registered with the Central Excise Department and as such, the question of availing the credit does not arise. In any case, he has remanded the matter to the Asstt. Commissioner for verification of the above factual position. We agree with the Commissioner (Appeals) on the legal issue that wherever the credit notes stand given to the customers, the refund would not be hit by provisions of unjust enrichment. For the said proposition, we rely upon the Hon'ble Karnataka High Court's decisions in the cases of CCE, Bangalore-I v. Om Pharmaceuticals Ltd. reported in 2011 (268) E.L.T. 79 (Kar.), Sudhir Papers Ltd. v. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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