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TMI Blog2017 (3) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Pak India Pvt. Ltd. Thirty appeals are against rejection of refund claims on the ground of unjust enrichment and on merits. Both the lower authorities have rejected the refund claims. One appeal is against finalisation of provisional assessment and rejection of refund on the ground of unjust enrichment. 2. In respect of 30 appeals on account of rejection of refund claim, the learned Counsel for the appellant submitted written submission. It has been argued by the appellant that the appellants are engaged in the manufacture of aseptic packaging material falling under Chapter Heading No.76. The appellant during the period January 2001 to March 2002 had paid excess amount of duty. The said excess payment of duty occurred because they had issued invoices without considering the quantity discounts which were known and available before the clearance. It was argued that the said discounts were not mentioned in the purchase order and in the acceptance order. The said discounts were not passed on through the invoices but were passed subsequently by way of issue of credit notes to the customers. It was argued that the said discounts were known to the buyer and seller, both, prior to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was a discount known to both the parties and the same was not considered by issuing invoices in January 2001 to March 2001 in respect of which the show-cause notices were issued on 03/05/2002 and on 06/05/2002 then the same mistake would not have continued after the said dates. The fact that the appellant continued to pay duty without considering the discount up to May 2003 shows that it was not any mistake but a conscious decision or not a intended discount. The claim of the appellant is that the said duty was paid by mistake does not appear to be correct. Thus, the refund has rightly been rejected on merits. Moreover, it is seen that the appellant had relied on the decision of the Hon ble Apex Court in the case of Addison Co. Ltd. (supra), we find that the appellant had relied on para 35 36 of the said decision. It is noticed that in para 35 36 of the said decision of the Hon ble Apex Court is dealing with Civil Appeal No.8488 of 2009. The Hon ble Apex Court has observed as follows: 35. The respondent-Assessee is a 100 per cent Export Oriented Unit (EOU) manufacturing cotton yarn. The respondent filed an application for refund of an amount of ₹ 2,00,827/- on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been examined by the Hon ble Apex Court in para 24 to 28 and also in para 31 to 34 of the order. The said paras read as follows: 24. Civil Appeals arising out of Special Leave Petition (C) Nos. 18426, 23722, 18423 and 18425 of 2015 are filed by Commissioner of Central Excise, Vishakapatnam, challenging the legality of judgment dated 19-2-2014 of a Division Bench of the High Court of Andhra Pradesh in Central Excise Appeal Nos. 51 of 2004 and 10, 9 and 21 of 2005. Civil Appeals arising out of SLP (C) Nos. 12282, 16141 and 16142 of 2016 are filed by the Commissioner of Central Excise, Vishakapatnam against the judgment dated 1-7-2015 of a Division Bench of the High Court of Andhra Pradesh in Central Excise Appeal Nos. 44 and 38 of 2004 and 18 of 2005. These three appeals were disposed of by the High Court in terms of its earlier judgment dated 19-2-2014. 25. The Assessee i.e. Andhra Pradesh Paper Mills Ltd. manufactures Paper and Paper boards. There is no dispute that excise duty is paid by the Assessee and the same is passed on to its buyers. Applications were filed by the Assessee for refund of amounts towards trade discounts that were given to its buyers. The refund cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e an application for refund of ₹ 61,146/- paid in excess on 31-7-2001. The said application for refund was rejected by an Order-in-Original dated 12-8-2002 by the Assistant Commissioner, Bhilwara on the ground that the Assessee was a job worker engaged in the processing of grey fabric and that the said fabric was returned to the owners of the fabric who sold the processed fabric in the market. It was also held that the incidence of the duty was passed on to the ultimate customers/consumers before the debit notes were raised by the owners of the fabric. As the duty paid at 8.8 per cent was passed on by the owner of the fabric to the ultimate consumer the processor was not entitled for a refund. 32. The Assessee approached the Commissioner Appeals, II Customs Central Excise, Jaipur by filing an appeal which was rejected by an order dated 27-2-2003. The Customs, Excise and Service Tax Appellate Tribunal by its order dated 11-5-2005 allowed the appeal filed by the Assessee on the ground that the incidence of duty was not passed on by the Assessee to the customers. The customers protested to the charging of the net duty payable at 8.8 per cent instead of 8 per cent in spite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A perusal of the order-in-original shows the said discounts were disallowed in the order-in-original on the following grounds: (i) No documents for the period have been submitted to establish the passing on of discounts. (ii) The provisional assessment was only for the period 01/05/2002 to 31/03/2003. For the subsequent period and prior to the period, there was no provisional assessment. This is so since the appellants had only sought provisional assessment with effect from 01/05/2002. Subsequently, vide letter dated 28/05/2003 provisional assessment for subsequent period was also allowed. Commissioner (Appeals) has observed as follows: 4. I have carefully considered the impugned order-in-original, refund claims filed by the appellants and various submissions made by the appellants. The issue before me is regarding finalization of the provisional assessment order and whether the credit notes issued for the period covered under provisional assessment attracts unjust enrichment. I find from the order-in-original that in spite of repeated reminders and requests, the required information and supporting documents such as Credit Notes, Purchase Orders, Invoices, etc. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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