9911796707
TMI Blog2024 (4) TMI 819X X X X Extracts X X X X X X X X Extracts X X X X ..... ) , Mangalore . 2. Briefly stated facts of the case are that the respondents are engaged in the manufacture of Tyres, Tubes and flaps falling under Chapter 40 of Central Excise Tariff Act, 1985. The discounts on the sale price of the goods are passed on to the customers on its sale price from the depots, accordingly, the assessable value of the goods could not be determined at the time of its transfer/clearance from the factory to the depots, hence the respondent requested for provisional assessment of their goods and paid duty accordingly. After receiving the data on quantum of discounts passed on to the buyers, on their application, the assessments were made final resulting into short/excess payment of duty. For excess payment of duty, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty to the buyer of such goods. In the instant case, incidence of duty has been passed on to the final customer who is the buyer of the finished goods and the benefit of credit notes is limited to the stage of the dealer. Therefore, the finding of the Commissioner(Appeals) that the present case is not hit by unjust enrichment cannot be accepted in view of Section 12(B) of the Central Excise Act, 1944 read with proviso under Rule 7(6) Central Excise Rules, 2002 since the respondent has failed to establish that the incidence of duty has not been passed on to the ultimate consumer. Further he has submitted that the decision of the Hon'ble Madras High Court in the case of Addison & Co. Vs. CCE, Madras [2009(129) ELT 44 (Mad.)] relied upon by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the fact that the burden of duty, claimed as refund subsequent to finalisation of provisional assessment has not been passed on to any other person even though credit notes have been issued by the respondent to the dealers while finalising the discounts. We find that in the respondent's own case, the Hon'ble High Court Karnataka considering more or less similar arguments and scrutiny of the claims from the angle of applicability of unjust enrichment and the refund sanctioned by the Revenue to the respondent from time to time, held as follows:- "14. In Addison & Co. Ltd., supra, the Hon'ble Apex Court has held that the assessee had admitted the incidence of duty was originally passed on to the buyer. No material was placed on record to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the judgment of the Hon'ble Apex Court in the case of Commissioner of Central Excise, Allahabad vs. Surcoat Paints (P) Ltd. [2008) E.L.T. 4 (SC) wherein, the Hon'ble Apex Court has held that the Revenue having accepted the decision given by the Tribunal in another case of the same nature, is precluded from challenging the similar order passed in respect of another unit. If so, in the very same assessee's case if the refund orders are accepted for particular years, the same cannot be challenged relating to other years. Revenue cannot pick and choose the assessment years for challenging the orders having similar effect. Moreover, as observed by the First Appellate Authority, the issue of unjust enrichment has been raised for the first tim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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