TMI Blog2014 (8) TMI 977X X X X Extracts X X X X X X X X Extracts X X X X ..... collection of the amounts shown in the respective invoices raised at the time of clearance of the goods, is disputed by the Appellant. The Appellant have placed before us a Chartered Accountant’s Certificate certifying that the Appellant had not collected the amounts shown in the invoices at the time of clearance of the goods. - Consequently, the impugned Order is set aside and the matter is remitted to the Original Adjudicating Authority, as consented by both sides, only for the limited purpose of examination/scrutiny of the issue whether the burden of duty has been passed on to the customers or otherwise. - Decided in favour of assessee. - E/457/2007 - Final Order No. A-75588/KOL/2014 - Dated:- 12-8-2014 - Dr. D.M. Misra, Member (J) and Dr. I.P. Lal, Member (T) Shri B.N. Chattopadhyay, Consultant, for the Appellant. Shri K. Chowdhury, Superintendent (AR), for the Respondent. ORDER [Order per : D.M. Misra, Member (J)]. - This is an Appeal filed against Order-in-Appeal No. 07/KOL-VI/2007, dated 28-3-2007 passed by Commissioner (Appeal-II), Central Excise, Kolkata. 2. Briefly stated the facts of the case are that the Appellant are engaged in the manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and paid Excise duty on the said value, however, no payment was received from M/s. Bokaro Steel Plant, till finalization of the provisional price. Further, he submits that on finalization of the price, a credit note was issued by the Appellant in favour of M/s. Bokaro Steel Plant for book-adjustment. It is his contention that at no point of time, they had received the amount, as shown in the respective excise invoices from M/s. Bokaro Steel Plant and later, refunded the amount by way of issuance of credit notes to M/s. Bokaro Steel Plant. In support of his contention, he placed a Chartered Accountant s Certificate enclosed at page 72 of the Appeal Paper book. However, he fairly admits that the CA s Certificate was not placed before the original authority for scrutiny, but submitted before the ld. Commissioner (Appeals). Further, he submits that the present refund is not barred by limitation, as the refund was filed on 11-12-2002, and in response to the queries raised by the Assistant Commissioner, vide his letter dated 5-3-2003, they had submitted further documents not enclosed with the original refund claim and removed the defects therein. Therefore, rectification of mistakes, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh that the burden of excess duty has not been passed on to the customers, as required under Section 12B of CEA, 1944. Before analyzing the issues in detail it is necessary to refer the relevant provisions of Section 11B of CEA, 1944, which reads as follows :- SECTION 11B. Claim for refund of duty. - (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the (Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise) before the expiry of (one year) (from the relevant date) (in such form and manner) as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in Section 12A) as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by, him and the incidence, of such duty had not been passed on by him to any other person : Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction; (e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person; (ea) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of Section 5A, the date of issue of such order; (eb) in case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; (ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction; (f) in any other case, the date of payment of duty. 5.1 Now, reverting to the dispute whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee had entered into an agreement with M/s. Coal India Ltd. for supply of explosives for the period from 1-4-2000 to 31-3-2001. The price of explosives was fixed initially at higher rates prevailing during the period, 2001-2002, on which the goods were cleared on payment of duty. Later, the rates were reduced and consequently, refund claim was filed on the basis of credit notes issued by M/s. Coal India Ltd. After referring to the case laws on the subject, Their Lordships on the subject, at Para 12, had observed as follows :- 12. Having carefully considered the submissions made by learned Counsel and having perused the judgments relied upon by the revenue and assessee, we are of the considered opinion that the ratio laid down in two judgments relied upon by the assessee which have been referred to above is clearly attracted in the cases before us. It is not disputed by the revenue that at the time of payment of Excise duty the assessees had made it clear to the Department that they were paying the Excise duty on the basis of the provisional price applicable for the period 1-4-2000 to 31-3-2001 and the price was not fixed. Although the assessment was not provisional, that by it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the purpose of adjustment of books of accounts and not to re-credit the amount already paid by the customers to the Appellant. The contention of the Revenue, on the other hand, is that once the credit notes were issued to regularize the amount already received, therefore, in view of the decision in the case of Sangam Processors (Bhilwara) Ltd. (supra), it cannot be said that the duty burden had not been passed on to the customers. We find that the basic fact of collection of the amounts shown in the respective invoices raised at the time of clearance of the goods, is disputed by the Appellant. The Appellant have placed before us a Chartered Accountant s Certificate certifying that the Appellant had not collected the amounts shown in the invoices at the time of clearance of the goods. Therefore, it is in dispute whether the amounts which are mentioned in the invoices, had either been collected or otherwise, before pressing into service the ratio of the said judgment. The ld. Consultant for the Appellant fairly accepts that the CA s Certificate was not placed before the lower authorities, and both sides agree that the issue be examined in the light of the CA s Certificate now plac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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