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TMI Blog2024 (4) TMI 819X X X X Extracts X X X X X X X X Extracts X X X X ..... KARNATAKA HIGH COURT] , 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 that 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 Credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, they have filed refund claims. The present appeals relate to refund claims of Rs.87,58,843/- (OIO No.14(R)/2012 dt. 20.04.2012) and for Rs.2,76,50,526/- (OIO No.13(R)/2012 dated 20.04.2012) for the period 01.04.2010 to 31.03.2011, filed on 06.01.2012. The adjudicating authority though sanctioned the said refund claims but transferred the same to consumer welfare fund observing that the respondent could not establish that the burden of duty has not been passed on to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 the Commissioner(Appeals) has been reversed by the Hon ble Supreme Court reported as 2016(339) ELT 177 (SC). 4. On the other hand, learned advocate for the respondent has submitted that the instructions by the CBEC on refunds in Chapter 9 of the Manual specifically states that the refunds pursuant to the adjustment after finalisation of provisional assessment are not governed by Section 11A and Section 11B of the Central Excise Act, 1944, as the case may be. Further he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned 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 show that the buyer to whom the incidence of duty was passed on by the assessee did not pass it on to any other person. It has been thus held that the sine qua non for a claim for refund as contemplated in Section 11B of the Act is that the claimant has to establish that the amount of duty of excess in relation to which such refund is claimed was paid by him and that the incidence of such duty has not been passed on by him to any other person. 15. in the aforesaid judgment, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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