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2016 (8) TMI 493 - AT - Central ExciseRefund claim - excise duty paid through credit notes on the discounts passed on to the dealers and stockists, subsequent to clearances - quantum of discount not disclosed to the stockists at the time of clearance - appellant did not opt for provisional assessment - Held that:- the appellant paid duty on the value including the discount that is to be allowed and therefore opting for provisional assessment is not required. The department does not dispute the discounts given and that appellant had paid duty on higher value. The purpose of provisional assessment is to safeguard revenue. The appellant has paid duty on higher value. In the impugned order, the Commissioner(Appeals) referring to the Circular F.No.354/81/2000-TRU dt. 30/06/2000 has observed that the appellant has satisfied the first three parameters in the suppl'mentary instructions at para 2.5)iv) of Part III, but did not opt for provisional assessment. Therefore, by following the Hon ble High Court of Andhra Pradesh judgment in the case of A.P. Paper Mills Ltd.Vs. CCE, Vishakapatnam [2014 (3) TMI 671 - ANDHRA PRADESH HIGH COURT], assessee is eligible for refund of excess duty paid on account of discounts offered after clearances. Unjust enrichment - incidence of duty has been passed on to buyers - appellant submitted a Chartered Accountant certificate showing that in the credit note, duty has not been recovered and had not been passed on to the buyers - Held that:- The Hon ble High Court of Karnataka in Sudhir Papers Ltd. Vs. CCE, Bangalore [2011 (3) TMI 1443 - KARNATAKA HIGH COURT] observed that if credit notes are raised and benefit is passed on to the customer, thus not passing on the burden of excise duty, the assessee is entitled to refund of the same. Therefore, the appellants are entitled to refund. - Decided in favour of appellant
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