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TMI Blog2017 (6) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... ation in that behalf, in the official gazette. Pertinently, though, Central Government's, mandate in that behalf is circumscribed to the extent that it cannot issue such a notification, unless it forms an opinion that the applicants, so notified had not passed on the duty to any other person. No refund can be claimed, unless the Assessee satisfies the conditions set forth in Section 11B of the 1944 Act - The Assessee, in this case is a manufacturer, had to necessarily demonstrate that the burden of duty had not been passed on to the ultimate customer - The Assessee, clearly, has not discharged its burden, as set forth in Section 11B. Appeal dismissed - decided against assessee. - Civil Miscellaneous Appeal No. 3430 of 2011 - - - Dated:- 6-6-2017 - Rajiv Shakdher And R. Suresh Kumar, JJ. For Appellant : Mr.A.P.Srinivas For Respondent : Mr.R.Parthiban JUDGMENT ( Judgment of the Court was delivered by Rajiv Shakdher,J. ) Background Facts: 1. This appeal, filed by the Revenue against the order of the Customs, Excise and Service Tax Appellate Tribunal (in short, Tribunal), was admitted, on 08.02.2012, when the following substantial questions of law wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aining to the aforementioned three (3) years, spanning between 2000-2001 and 2002-03. The breakup of the refund claims, which totalled, as indicated above, to a sum of ₹ 1,71,691/- is as follows: ₹ 95,703/- (2000-2001); ₹ 72,694/- (2001-2002) and ₹ 3,294/- (2002-2003). 2.4. It is pertinent to note that the refund claim had been lodged by the Assessee based on credit notes issued to its customers. 2.5. Continuing with the narrative, the refund claims of the Assessee were processed by the concerned authority and thereupon, an order dated 29.08.2007 was passed. Via this order, the concerned authority sanctioned the refund amount claimed by the Assessee, i.e., a sum of ₹ 1,71,691/-, and also, confirmed the demand raised in the sum of ₹ 2,22,338/-. In the operative part, the concerned authority squared off the refund against the duty demand and, accordingly, called upon the Assessee to pay the balance sum of ₹ 50,647/- along with interest calculated on ₹ 2,22,338/-. The Assessee was directed to pay interest for the period, commencing from 01.01.2004 till the date of payment. 2.6. Pursuant to the aforementioned order being passed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld have been no such extra duty collected on a lower value. The case Law cited above is squarely applicable to the issue in hand. Yet another question arises here:- There is no proof adduced by the respondent that he is maintaining stock wise and item wise accounts in the Depots of receipts from the factory and dispatch of customers, in such a way that each item and each lot is relatable to a buyer. Unless this correlational account is maintained, in a verifiable manner, it cannot be said that the actual buyer has received the duty refundable. The credit notes were raised but there is no certification or verifiable evidence produced by the respondent that the credit notes were so raised on the specific rightful buyer of a specific item cleared from the factory. In the absence of the same it cannot in fairness be held that the respondent is entitled for refund at all. Such entitlement entails question of unjust enrichment. Here, even the very entitlement is at stake. Hence he is not entitled to or eligible at all for refund, as seen from the records available in the appeal paper...... 3.1. Based on the above-said, the Commissioner (Appeals) directed that the adjustmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hindustan Petroleum Corpn. Ltd. V. Commr. of Cus. (Import), Mumbai 2013 (291) E.L.T. 230 (Tri-Mumbai) (iii) Toyota Kirloskar Auto Parts Pvt. Ltd. V. C.C.E., LTU, Bangalore 2012 (276) E.L.T. 332 (Kar.) (iv) Commissioner of Central Excise Customs V. Dutron Plastics 2015 (322) E.L.T. 267 (Guj.) (v) Sri Raja Vinayagar Mills V. CESTAT, Chennai 2015 (325) E.L.T. 488 (Mad.) (vi) Judgment dated 26.10.2016, passed in C.M.A.No.3742 of 2011 titled: M/s.TVS Electronics Ltd. V. The Assistant Commissioner of Central Excise and two others. 7. On the other hand, Mr.R.Parthiban, relied upon the Tribunal's judgment and order, and particularly, the judgment of the Rajasthan High Court in the matter of: Union of India V. A.K.Spintex, 2009 (234) ELT 41 (Raj.). Reasons: 8. Having heard the learned counsel for the parties and perused the record, what has come to fore, is as follows: i) That the Assessee had been clearing goods at different values from various Depots, located in different cities. ii) On account of the Assessee not knowing the final price of the goods, it opted for Provisional assessment of goods. iii) Upon final assessment being made vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as the Assessees generally, claiming refund on the basis of credit notes qua trade discounts is concerned, the Supreme Court in the judgment rendered in Commissioner of Central Excise, Madras V. Addison Co. Ltd. [2016] 10 SCC 56, has accepted the said methodology. 8.7. As a matter of fact, in that behalf, the Supreme Court relied upon its earlier judgments in the matter of Addison Co. Ltd. V. CCE (1997) 5 SCC 763 and UOI V. Bombay Tyres International (P) Ltd. (2005) 3 SCC 787, (see observation made in paragraph 15 at page 65). The Court observed the fact that trade discount shall not be disallowed only because it was not payable each time an invoice was raised or even where it was not deducted from invoice price. 8.8. That being said as to whether the methodology of credit notes would be countenanced to revise the final price payable by the customer does not appear to have been ruled upon by the Supreme Court in the aforementioned judgment. 9. In the facts of this case, reliance was placed by the Assessee on the credit notes, apparently, to demonstrate that the burden of duty had not been passed on to the customer. 10. In the matter of Union of India V. A.K.Spi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of excise, in relation to which, refund was claimed, had not been passed on by him to any other person. The Court, while enunciating the principle, noticed the provisions of Section 11B(2) of the very same Act and held that in terms of the said Section, the refund claimed has to be ordinarily, credited in the first instance to the Consumer Welfare Fund (in short 'Fund') and furthermore, in terms of the proviso to the said Section, i.e., Section 11B(2), the amount of duty, which is refundable, could be paid to the applicant , instead of being credited to a Fund, if, the amount qua which refund is sought is relatable to duty paid by the manufacturer and, the manufacturer, in turn, is able to demonstrate that the incidence of such duty had not been passed on to any other person. 12.1. Furthermore, the Court also noticed that clause (e) appended to the proviso to Section 11B(2), which enabled even the customer or buyer to seek refund - could claim refund, provided one was able to demonstrate that the incidence of duty had not been passed on to any other person. Similarly, a third category, that is, a class of applicant, who could claim refund was also noticed. These are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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