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2014 (12) TMI 234 - AT - Central ExciseDenial of refund claim - Discounts given to customers - Provisional assessment - Finalization of provisional assessment - Duty paid at the factory gate on a higher assessable value while clearing the goods to their depots/consignment agent’s premises, as at that time, the quantum of permissible deduction was not known - Held that:- deduction of turnover discount is admissible even if such discounts are not given in the invoice, but are subsequently paid to the buyers by issuing credit notes for the equivalent amounts. Thus, the impugned order in so far as upholding the deductions of these discounts is concerned is correct. Neither in the order passed by the Assistant Commissioner nor in the order passed by the Commissioner (Appeals), any refund arising out of finalization of the provisional assessment has been sanctioned. In terms of sub-rule (6) of Rule 7 of the Central Excise Rules, if finalization of provisional assessment results in some amount becoming refundable, this refund would be subject to the principles of unjust enrichment and it will be payable to the assessee only if the incidence of the excise duty whose refund is sought, has not been passed on, to any other person. Thus, the finalization of the provisional assessment and grant of refund, if any, arising on account of finalization of provisional assessment, are two separate issues and should not be mixed-up. Assistant Commissioner and the order-in-appeal passed by the Commissioner (Appeals) are purely on the issue of admissibility of the discounts for deduction. Just because on permitting the deduction of these discounts while finalizing the assessment, some duty becomes refundable and it appears that the refund that amount is not payable to the assessee for the reason that he had passed on the incidence of that duty to the customers, the deduction of the admissible trade discount cannot be refused and what is to be refused is the refund. The department has mixed-up the two issues which is not correct. In fact the grounds on which the order of the Commissioner (Appeals) is sought to be challenged are absurd. The appeal filed by the Revenue is, therefore, without any merit. - Decided against Revenue.
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