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TMI Blog2023 (12) TMI 899X X X X Extracts X X X X X X X X Extracts X X X X ..... nce from the factory is redetermined and the duty payable is accordingly arrived at. Consequently, the difference between the duty paid and the duty payable is calculated and the assessment is finalized. The result of the said exercise may end up with recovery of differential duty short paid or refund of excess paid. The Revenue s contention is that after determination of the exact duty payable on finalization of assessment, excess duty paid cannot be adjusted against duty short paid, without testing its incidence of excess duty whether passed on to any other person in compliance with the statutory presumption under section 12B of CEA, 1944. It is their argument that netting of duty by passing the statutory presumption is not laid down under Rule 7 of Central Excise Rules,2002. Accordingly, duty liability is calculated against the duty provisionally paid at the time of clearance of the goods from the factory and the amount payable - The Revenue s objection is that the duty excess paid cannot be adjusted against the duty short-paid during a particular month/period of assessment to arrive at the net result of refund or liability. It is the Revenue s contention that there is no spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng authority finalise the provisional assessment by adjusting the duty short paid with the duties excess paid in a particular month. After netting off the duty for the month, duty short paid is recovered and excess duty paid is allowed as refund subject to verification of fulfilment of the bar of unjust enrichment. In the present case, the adjudicating allowed the refund of excess duty paid after due adjustment between the duty short paid to that of duty excess paid. Aggrieved by the adjustment of excess duty to that of duty short-paid during the period of provisional assessment, the Revenue filed appeals before the learned Commissioner (A). The learned Commissioner (A) setting aside the orders of the adjudicating authority allowed the Revenue s Appeal. Hence, the present appeals. 5. At the outset, the learned advocate for the appellant has submitted that the appellants are passing on various discounts viz., quantity discount, prompt payment discount, product discount, cash discount, slab discount, special discount, quarterly discount, etc., during the relevant period on the sale effected from their depots to various customers. Since the exact quantum of discounts are not kno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -paid is permitted and interest is not chargeable if the duty-paid in excess than short-paid. It is his contention that reliance placed by the learned Commissioner (A) on the judgment of the Hon ble Supreme Court in the case of Commissioner of Central Excise, Madras vs. Addison Co. Ltd.: 2016 (339) ELT 177 is misplaced as the said judgment has been considered by Hon ble Karnataka High Court in Vikarant Tyres case(supra). Further, he has submitted that in any case the duty of incidence is borne by the appellant and has not been passed on to the ultimate consumer. He has also submitted that Department accepted credit notes/debit notes as valid documents for transferring the amount under the trade and commercial parlance. In the event credit notes are raised and benefit of discount is passed on to the customers, the burden of excise duty cannot be said to have been passed on and the assessee is entitled to refund of the same. In support, he referred to the judgment in the case of Sudhir Papers Ltd. vs. Commissioner of Central Excise, Bangalore-I: 2012 (276) ELT 304 (Kar.). 6. Per contra, the learned Authorised Representative Shri Rajiv Kumar Agrawal, Commissioner for the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TMI 527-CESTAT-New Delhi- LB. in support of his argument that principles of unjust enrichment is applicable to all refunds arise during the course of finalisation of provisional assessment. Further, he has referred to the judgment of Hon ble Madras High Court in the case of TVS Electronics Ltd. vs. CCE, Chennai: 2017 (348) ELT 630 wherein the Hon ble High Court following the judgment of the Hon ble Supreme Court in Addison Co. Ltd. case held that the mandatory exercise has to be undertaken by the manufacturer in order to establish passing the test of unjust enrichment. This judgment has been followed subsequently in the case of Commissioner of Central Excise, Chennai-III vs. National Plywood Industries Ltd.: 2017 (353) ELT 196 (Mad.). Also, he has referred to the judgment of the Hon ble Bombay High Court in the case of CCE, Pune-II vs. Daimler Chrysler India Pvt. Ltd.: 2016 (342) ELT 28 (Bom.), in support of his argument that the appellants are required to establish that the burden of duty has not been passed on to the ultimate consumer. 7. Heard both sides and perused the records. 8. The short question involved in these present appeals for determination is, whether the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Excise Rules, 2002 directing such adjustment/netting off duty. 11. Revenue has referred to the judgment of the Hon ble Madras High Court in the case of TVS Electronics Ltd. case (supra) which followed the judgment in Addison Co. Ltd. passed by the Hon ble Supreme Court in directing that the refund amount arising due to provisional assessment be subjected to unjust enrichment. 12. The appellant s contention on the other hand is that the very purpose of provisional assessment is for adjustment of excess duty-paid to short-paid during a particular period and determining the net effect of the duty, that is, either by way of payment or seeking refund of the amount paid. In support they referred to the judgment of jurisdictional High Court in the case of Vikrant Tyres Ltd s case and in Toyota Kirloskar Auto Parts Pvt. Ltd s case(supra). 13. The Revenue s argument may seem attractive in view of the judgment of Hon ble Madras High Court in TVS Electronics s case(supra), but we find that the jurisdictional Hon ble Karnataka High Court in the appellant s own case taking note of the judgment of the Hon ble Supreme Court in Addison Co. Ltd. case and in the context of finalisat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed by the First Appellate Authority, the issue of unjust enrichment has been raised for the first time on the sanction of refund order consequent on finalisation of provisional assessment. The authorities have admitted that the credit notes were issued by the assessee to their dealer representing various discounts which have been actually passed on, in accordance with marketing circulars/policies. It is also observed that on verification of sample depot invoices at the time of completion of provisional assessment, that the assessee has not issued any cenvatable invoice from the depot which are prescribed document for availment of cenvat credit under Cenvat Credit Rules, 2004. Thus, it cannot be held that the assessee has not subjected to the test of unjust enrichment. 14. It has been brought to our notice that the said judgment of the Hon ble Karnataka High Court has been accepted by the Revenue as communicated through their letter dated 17.11.2023. Needless to mention, the principle laid down by the jurisdictional High Court is binding on the Tribunal in view of the judgment of the Larger Bench of the Tribunal in the case of Collector of Central Excise, Chandigarh vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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