TMI Blog2015 (9) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... we find that the Tribunal in the remand proceedings has held such discounts to be admissible and does not open to the Revenue to challenge the same in the remand proceedings. Revenue in their memo of appeal have submitted that as the appellant had originally recovered the duty amount from their customers, who might have taken the credit, the provisions of unjust enrichment would apply. They have further pleaded that inasmuch as the discount is always relatable to the value and not to the duty, the recovery of the entire duty from the customers and the grant of refund to the assessee would amount to unjust enrichment of the assessee. We find that the assessee’s customers have taken a categorical stand and have also produced certificates before Commissioner (Appeals) that they are not registered with the Central Excise Department and as such, the question of availing the credit does not arise. If the discounts are given, the value would be lowered resulting in assessees’ liability to pay reduced duty in which case, if assessee has paid back the excess duty to the customers, he would be entitled to the refund of the same. - Refund allowed. - Decided against the revenue. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n form of price circulars, price lists, discount policy, circulated among the dealers their deduction from the assessable value would have to be allowed in view the Apex Court s judgment in the Apex Court in the case of Union of India v. M/s. Madras Rubber Factory (supra) even if the same were quantified, subsequently, subject to the conditions that the same had actually been passed on to the buyers. If the discounts, in question, are deductible from the assessable value, the respondent would be eligible for refund subject to the provisions of Section 11B of the Central Excise Act, 1944 i.e. the refund claim having been filed within the prescribed limitation period and being not hit by the principle of unjust enrichment. For examining this aspect the matter has to be remanded to the Original Adjudicating Authority. 3. The Original Adjudicating authority, in remand proceedings, again held that the assessees is not entitled to the discount deductions and accordingly, rejected the refund claims filed by the assessee. On appeal, Commissioner appeals examined the entire issue along with the document etc. and held that the respondent is entitled to the discounts, as the discount poli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nic Steel Ltd., Srinagar for passing discount @ ₹ 400/- per MT on the quantity of 35.273 MT purchased by them during the month of October, 2010. I find that the said discount passed on by the appellant is also in accordance with the discount policy circular dated 30-9-2010 issued by the appellant for the month of October, 2010 and the said credit voucher is duly posted in the customer s ledger account on 15-11-2010. I observe that during these appeal proceedings, the appellant has also produced sample invoices, credit notes, transfer voucher and ledger account in respect of goods sold by them to M/s. Adhunik Steel Ltd., Jaunpur (U.P.) on which the quantity discount @ ₹ 150/- per MT has been passed on by the appellant for the month of September, 2010 which I find is in accordance with the same policy circular as made applicable for passing discount in the case of M/s. Cannic Steel Ltd., Srinagar. Moreover, I observe that copies of ledger accounts produced by the appellant on sample basis in respect of the above two buyers also reveal that the quantity discounts have been passed on to these buyers from time to time on a monthly basis by way of issuing the credit notes. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customers. Similarly, I also observe that in the letters dated 16-6-2012, as also mentioned in the impugned order, a few customers of the appellant have also confirmed about the receipt of these credit notes. Further, I find force in the reliance placed upon Hon ble Karnataka High Court s decision in the case of CCE v. OM Pharmaceutical Ltd., reported in 2011 (268) E.L.T. 79, wherein it was held that even in case duty was collected but was repaid, the same is sufficient to hold that the incidence of duty was not passed on, though initially it was passed on but thereafter returned the same to the customer. I observe that the Hon ble High Court of Karnataka in the case of Sudhir papers Ltd. v. CCE, Bangalore-I, as reported in 2012 (276) E.L.T. 304 (Kar.), has held that .if the credit notes are raised and the benefit is passed on to the customer, thus not passing on the burden of Excise duty the assessee is entitled to the refund of the same. Further, this decision has been relied upon by the Hon ble Karnataka High Court in the case of CCE, Belgaum v. Jineshwar Malleable Alloys, as reported in 2012 (281) E.L.T. 43 (Kar.), and it has been held that there was no unjust enrichment a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime of clearance of their final product. The discounts stand actually given when a particular customer attains that goal of quantum of purchase. In such a scenario the Revenue cannot question the assessee, as to why, the discounts stand given to a particular customer. It may not be out of place to mention here that Revenue is not disputing the factum of grant of discount. 6. As is seen, Commissioner (Appeals) has gone by the certificates given by the customers that the discount policy floated in the past years was known to them and the discount stand given to them in accordance with those policies. The Revenue s contention is that such certificates stand given subsequently by the customers for the past period and as such, should not be accepted inasmuch as the assessees discount policy was not on the website. We find no merit in the above contention of the Revenue. Even though, the certificates were given subsequently, they related to the relevant period. It is also not being disputed that discount policy was floated by the assessee amongst their customers. As such, non-uploading of the same at the website would not make a difference. Otherwise also, we find that the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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