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TMI Blog2023 (9) TMI 1058X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned Commissioner (Appeals) the language of the CA certificate leaves much to be desired. And therefore for reasons stated he has correctly rejected the same. It is thus clear that variance in the rate of abatement just does not happen due to variance of Excise Duty only but also because of variance of other taxes that might have moved intandem with the rate of abatement. In fact percentage of abatement is likely to go up as per Section 4A(3) only when taxes have already been raised. It is thus clear that unless and until exact components of Excise duty varied as well as other taxes including state levies varied while computing abatement is known, it cannot be stated by a party categorically that it paid which tax in excess, speciall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e period 10.05.2012 to 14.05.2012 claimed having paid Excise Duty, sought refund from the department as abatement percentage permitted on their product under Notification No. 26/2012 dated 10.05.2012 was varied from 25% to 35%. During the impugned period, the appellant cleared their product i.e. Air Conditioner at old rate of abatement, therefore, on coming to know of their mistakes filed refund claim of Rs. 15,23,922/-. On being asked to show that there was no unjust enrichment, as per presumption available in Section 12B of the Central Excise Act, 1944, the appellant relied upon the Chartered Accountant s Certificate dated 29.10.2012 which reads as follows:- Further, it is on the part of the assessee to prove that the incidence of Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orth consideration, if the appellant have provided the documents evidence to prove that the disputed goods cleared during the period 10/5 / 2012 to 14/5 / 2012 were in their possession. I find that during the remand proceedings also they have not produced such documents before the adjudicating authority resulting in to rejection of their claim. So far as the Chartered Accountant's certificate produced is concerned, I hereby mention the excerpts of Sub-Para-D of Para - I, that:- we have been informed by the management that the above excise duty has not been directly or indirectly passed on to the customers. We have relied upon such representation from the management and have not undertaken any procedure on the same . Plain r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund was claimed were those which were not sold and the same were lying in the depot and therefore no burden or incidence of tax was actually passed to any other customers. 4. The Learned AR relies upon the finding of Commissioner (Appeals) and also relied additionally upon the decision of Apnacar.Com Pvt. Ltd. Vs Commissioner of Central Tax Bangaluru South Commissionerate as reported in 2021 (55) GSTL 166 (Tri.-Bang.) to indicate that Chartered Accountant Certificate if issued at the request of the appellant cannot be considered as conclusive proof to decide any other issues. 5. Considered, the rival submissions. This Court has gone through the records as are available on the file. The appellant have contended that consequent upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t might have moved intandem with the rate of abatement. In fact percentage of abatement is likely to go up as per Section 4A(3) only when taxes have already been raised. It is thus clear that unless and until exact components of Excise duty varied as well as other taxes including state levies varied while computing abatement is known, it cannot be stated by a party categorically that it paid which tax in excess, specially when some state levies are meant for wholesalers and retailers. It is thus clear that in MRP based assessment, refund of non claim of abatement cannot be purely treated as a refund of excise duty paid in excess only as per Section 11B. In the proceedings before this Court, such information as to what all taxes went into wo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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