2017 (3) TMI 292

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..... efore opting for provisional assessment is not required. Unjust enrichment - Held that: - The appellant has produced documents such as Chartered Accountant Certificate, Ledger account as well as the Balance Sheet. The appellant has therefore established that the burden of duty has been borne by the appellant. In view thereof, following the decisions laid in the appellant's own case [2016 (8) TMI 493 - CESTAT HYDERABAD], the appellant is eligible for refund. Appeal allowed - decided in favor of appellant.
Ms. Sulekha Beevi, C.S., Member (Judicial) Shri. Y. Sreenivasa Reddy, Advocate for the Appellant. Shri. P.S. Reddy, Deputy Commissioner (AR) for the Respondent. ORDER The above appeal is filed against the rejection of refund claim fi .....

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..... xtended as per the commercial considerations, irrespective of the fact whether the quantum of such discount of any description for a transaction was known prior to the clearances or not (similar to year end discount); and iv) the assessee disclosed the intention of allowing such quantity discounts to the department and necessarily made a request for provisional assessment in terms of Rule 7 of Central Excise Rules, 2002. It was thereby observed by Commissioner (Appeals) that the appellants did not fulfill the fourth condition as they did not opt for provisional assessment and therefore is not eligible for refund. The said point was considered by the Tribunal in the appellant's own case vide Final Order No. A/30128/2016 dated 29.01.2 .....

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..... ppellant have furnished Chartered Accountant Certificate, Ledger accounts and also Balance Sheet showing that the amount is shown as receivables. In the case of CCE, Madras Vs. Addison & Co. Ltd. [2016 (339) ELT 177 (SC)], the Honorable Apex court has observed that when the assessee establishes that the burden of duty has been borne by the assessee the refund of excess duty paid cannot be denied. The relevant para is reproduced as under: 36. Except for a factual dispute about the genuineness of the certificate issued by the Chartered Accountant and the credit notes raised by the Assessee regarding the return of the excess duty paid by the Assessee, there is no dispute in this case of the duty being passed on to any other person by the .....

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