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TMI Blog2019 (7) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... ales to the ultimate consumer by the dealer at lesser value due to market fluctuations of prices, additional discount was given to the dealers to bridge the gap between the factory sale price and final sale price in the market, that the appellant had provided additional discount by issuing of credit notes to them and submitted them for the purpose of finalization of provisional assessment, which was verified by the jurisdictional Range Officer and it was found to be in order. These orders finalizing the provisional assessment were never challenged before the higher authorities and have attained finality. The appellants have also produced Chartered Accountant certificate which was also considered by the original authority while finalizing the provisional assessment but during the refund proceedings, both the authorities did not consider the Chartered Accountant certificate certifying that incidence of duty has not been passed on to the ultimate consumer. Appeal allowed - decided in favor of appellant. - E/21905/2018-SM - Final Order No.20525/2019 - Dated:- 5-7-2019 - SHRI S.S GARG, JUDICIAL MEMBER For the Appellant : Mr. K.S. Ravi Shankar, Mr. N.Anand A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alization of provisional assessments in terms of which it was duly ordered by the Assistant Commissioner under two separate OIOs bearing No.05/2016-17 (PA) dated 30.11.2016 and No.01/2017-18 (PA) dated 25.04.2017 that the appellant has paid excess Central Excise Duty for the relevant periods and are entitled for refund of such Excise Duty in terms of the Hon ble Apex Court decision in Addision Co. Ltd. [2016 (339) ELT 177]. These orders finalizing the provisional assessments for the relevant periods were never challenged by the Department in a proceeding under Section 35E of the Act. In view of the finalization of provisional assessment, the appellant filed refund claims in regard to two periods after such finalization of provisional assessment. As per the finalization of provisional assessment, the appellants were held entitled to refund of the disputed amount along with interest. However, another adjudication was made in regard to the refund claims, without issuance of SCN and adjudication order passed holding that the appellant was not entitled to refund in terms of the OIO dated 30.11.2017 and both the refund claims were rejected by the original authority. Aggrieved by the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that these decisions of the Hon ble Apex Court has been followed recently by this Bench of the Tribunal in the case of Merti Trac Services Pvt. Ltd. Vs CCE [2019 (24) GSTL 619 (Tri. Bang.)]. Learned Counsel further submitted that the Bombay Bench of the Tribunal passed two orders dated 06.10.2017 No.A/92157/17 in Appeal No.E/87051/17 and No. A/92129/17 in Appeal No.E/85413/15 dated 29.09.2017 in the appellant s own case whereby the Tribunal has held against the Revenue. He further submitted that the Central Excise Officer has no power to revise/review/reconsider the decision/order passed by his predecessor. It is only by questioning an Order-in-Appeal by the Revenue that any decision/order can be contested as to its correctness. He further submitted that no SCN was issued before rejecting two refund claims by the original authority which is in gross violation of the principles of natural justice. For this submission, the appellant relied upon the decision in the case of UOI Vs Madhumilan Syntex Pvt. Ltd. [1988 (35) ELT 349 (SC)] and CCE Vs Tin Plate Co. of India Ltd. [1996 (87) ELT 589 (SC)] . As per these decisions of the Hon ble Apex Court, issuance of SCN is important ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf in several Paras of the impugned order holding that he had seen from the records that there was a finalization of provisional assessment, that excess duty has been paid on factory gate sales and that credit notes had been issued etc. He has also ignored the finding of the lower authority that there was a Chartered Accountant certificate on record. 5. On the other hand, learned AR defended the impugned order. 6. After considering the submissions of both the parties and perusal of the material on record, I find that in the present case, the appellants were clearing the goods to their dealers from the factory gate and were paying the duty on the prevalent prices and later on the appellant issued the credit notes to the dealers which resulted into payment of excess duty by the appellant while clearing the goods from the factory gate. Further, I find that the appellants were permitted to clear the goods on provisional assessment under Rule 7 of the Central Excise Rules for the disputed period. Subsequently, the Assistant Commissioner finalized the provisional assessment by passing two separate Order-in-Originals and in the said order of finalization, the or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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