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TMI Blog2016 (7) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... e month following which the prescribed threshold was crossed. Accordingly, the clients were entitled to lower 'brokerage' during the above period but tax liability had been discharged with the prescribed deadline on the 'brokerage' charged at standard rates - the adjustment was given effect to by issue of credit notes in favour of the clients. 3. The refund sanctioning authority denied the claim on the primary ground that tax had been computed and paid by self-assessment and such assessment, having attained finality, could not be challenged through a refund claim. It was held that the assessee, in such cases of uncertainty about the 'brokerage', should have resorted to provisional assessment envisaged in rule 6(4) of Service Tax Rules, 1994. It was also noted that the claim for refund was not supported by documents that could conclusively cross the hurdle of 'unjust enrichment.' In appeal, the impugned order held that assessment or self-assessment would not prejudice the claim for refund; however, the appellate authority was not satisfied that credit notes were sufficient to establish that the tax burden had not been passed on to the recipients of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upholding the decision. Learned Counsel also drew our attention to the decision of the Hon'ble High Court of Rajasthan in Union of India v. AK Spintex Ltd. 2009 (234) ELT 41 placing the onus on Revenue to evince lack of authenticity of accounting documents furnished in support of having borne the tax burden. Reliance was, in addition, placed on the decision of the Tribunal in Andhra Pradesh Paper Mills Ltd. v. CCE [2009 (2) TMI 675 - CESTAT, BANGALORE] and CCE v. Sirpur Paper Mills Ltd. 2010 (253) ELT 269 (Tri-Bang) in support of the contention that post-clearance adjustments by issue of credit notes suffices as evidence of reduced assessable value and reversal of tax collected from customer. It was also submitted that in view of the decision of the Hon'ble High Court of Jharkhand in McNally Bharat Engineering Co. Ltd v. CCE 2011 (267) ELT 610 (Jhar), the impugned order is flawed in having traversed beyond the scope of show-cause notice by denying the release of refund to the appellant on the ground that availment of CENVAT credit by the three clients amounts to unjust enrichment. Besides inviting attention to the decisions relied upon in the impugned order including those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in excess had been recovered by the appellants from their customers. Even though the credit notes had been issued, the fact that CENVAT credit had been availed on the said Service Tax paid in excess also confirms that the amounts had been fully recovered by the appellants from their customers. The Chartered Accountant's certificate that the reversals have been effected by issuing journal vouchers without any narration does not lend any credibility to the certificates. The treatment of the amounts in the books of account has also not been explained. The adjudicating authority has relied upon the decision of S. Kumar v. CCE, Indore [2003-TIOL-01-CESTAT-Delhi-LB] to hold that mere issue of credit note cannot be said to be sufficient to cross the bar of unjust enrichment. That issue of credit does not satisfy the principle of unjust enrichment has also been held in the following cases: (i) Grasim Indus. (Chemical Davision) v. CCE, Bhopal [2003 (153) ELT 694 (Tri. - LB)] (ii) Rajasthan Processors (India) Ltd. v. Collector [1994 (70) ELT A182] (iii) Orion Steel Corporation v. CCE, Vodadara [2010] (18) STR 237 (Tri. - Ahm) (iv) Sudhir Papers Ltd. v. CC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rules made, or any notification issued, under this Act; (d) the duty of excise paid by the manufacturer, if he had not passed on the incidence of such duty to any other person; (e) the duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person; ** ** **" It is amply clear that the form of evidence of having borne the duty burden is not prescribed; sufficient flexibility is impliedly permissible and it behoves the original authority to be able to comprehend and appreciate rigorous documentary trail that enable business to be operated efficiently without recourse to rigidity of reporting that is characteristic of bureaucratic grind. That rigour, though arising from convention and practice, having been acknowledged by, and enforceable in, commercial law is the backbone of fiscal engagement. Credit and debit notes have been in use for centuries as acknowledgment of dues and debt; these are legally enforceable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, and is not able to rebut evidence, it cannot be assumed, that it will open floodgates for pilferage of the revenue. Difficulties may be on either side, but then, that cannot be considered as a ground for interpreting Sec. 12B, in the manner the revenue wants us to interpret it.' Credit notes do not exist as inactive exhibits; the financial adjustment is manifested as entries in journals and ledger to impact the consideration made over and received for any goods supplied or service rendered. With credit notes being a conventional method of reflecting the change in consideration, and its authenticity not having been refuted, reliance has necessarily to be placed on the net effect that it has on the taxable transaction. Reversal of 'brokerage' carries with it the reversal of tax collected along with the excess 'brokerage.' We, therefore, need merely to ascertain if any of the cited decision prevent acceptance of credit note. 10. In view of the decision in re AK Spintex (supra), the decision of the Larger Bench of this Tribunal in re S Kumar's Ltd. (supra) affirming the applicability of the order in re Sangam Processors (Bhilwara) Ltd. (supra) would be limi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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