TMI Blog2015 (11) TMI 1470X X X X Extracts X X X X X X X X Extracts X X X X ..... t be sustained. - it is settled that even if the excess duty for which refund is sought for is collected but subsequently returned by way of credit note, it cannot be said that the incidence of refund amount has been passed on. It is also observed that since the appellant admittedly accounted for the said amount as ‘receivable’ in the balance sheet, it is a sufficient evidence to hold that incidence of duty has not been passed on, otherwise the amount cannot be accounted for as receivable. - appellant is entitled for the refund and the learned lower adjudicating authority has rightly sanctioned the refund claim - Decided in favour of assessee. - Appeal No. E/341/10-Mum - Final Order No. A/144/2015-WZB/SMB - Dated:- 7-1-2015 - Mr. Ramesh Nair, Member (Judicial) For the Petitioner : Shri H.G. Dharmadhikari, Advocate For the Respondent : Shri N. Prabhu Desai, Superintendent (AR) ORDER The appeal is directed against order-in-appeal No. YDB/219/M-III/2009 dated 1.12.2009 passed by Commissioner of Central Excise (Appeals), Mumbai-II, wherein the learned Commissioner (Appeals) set aside the order-in-original and allowed the appeal filed by the Revenue. 2. The fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 2,17,007/- after finding that the facts and circumstances of the present case are similar to that of the ONGC case, under the original order No. 12/08-09./AC dated 29.4.2008. The Revenue filed appeal before the Commissioner (Appeals), which was allowed and the order dated 29.4.2008 was set aside. Aggrieved by the impugned order, the appellant is before me. 3. Shri H.G. Dharmadhikari, learned counsel for the appellant, submits that in the earlier proceedings, the Commissioner (Appeals), while remanding the case to the original authority, directed that the case has to be verified in the light of the judgment of the Tribunal in the case of ONGC reported in 2003 (158) ELT 829 (Tri.). The appellant was also directed to produce necessary documents to the adjudicating authority for verification. It is his submission that as per the Commissioner (Appeals) s remand order dated 5.2.2008, the original authority had no option except to decide the case within the four corners of the judgment in the case of ONGC (supra). He submits that the Revenue has not challenged this order by filing an appeal before the Tribunal. Therefore, the finding or the direction given by the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. 4. On the other hand, Shri Prabhu Desai, learned Superintendent (AR), reiterates the findings of the impugned order. He submits that once excise duty was collected against the sale invoices, it was the admitted fact that subsequently the credit note was issued, it has to be treated that the incidence of such duty has been passed on to the customer and the provision of unjust enrichment has become operative. He placed reliance on the following judgments:- (i) S. Kumar s Ltd. vs. CCE, Indore reported in 2003 (153) ELT 217 (Tri.-LB); (ii) Grasim Ind. (Chemical Divn.) vs. CCE, Bhopal reported in 2003 (153) ELT 694 (Tri.-LB); (iii) Sangam Processors (Bhilwara) Ltd. vs. CCE, Jaipur reported in 1994 (71) ELT 989 (Tri.), which was upheld by the Hon ble Supreme Court as reported in 1999 (112) ELT A115 (SC); and (iv) Fenner India Ltd. vs. CESTAT, Chennai reported in 2014 (305) ELT 524 (Mad.). He submits that in view of the above judgments, refund cannot be granted in case where the duty was collected and subsequently credit not was issued. 5. I have carefully considered the submissions made by both sides and perused the records. The fact of the case is not un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight of the judgment of the Tribunal in the case of ONGC reported in 2003 (158) ELT 829 (Tri.). The appellant is also directed to produce necessary documents to the adjudicating authority for verification. From the above findings, it is observed that the learned Commissioner (Appeals) has given clear direction to the original authority to decide the case in the light of ONGC s case (supra). The matter was remanded to the original authority only for verification of the documents. It is admitted fact that the Revenue has not challenged this order by filing an appeal before the Tribunal. Hence the same attained finality. Therefore, the Revenue did not have liberty to file appeal before the Commissioner (Appeals) in second round challenging the finding of the first order-in-appeal dated 5.2.2008. In view of this, the learned Commissioner (Appeals) could not have taken a different view as against the view taken in the earlier order-in-appeal dated 5.2.2008. 6. In the case of Madura Coats Pvt. Ltd. (supra), the Hon ble Madras High Court has held as under:- 7. As rightly pointed out by the learned counsel appearing for the respondent, the Authorities have passed the orders in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... na High Court and subsequently by the Hon ble Supreme Court, there is an identical fact that whether duty paid at the time of clearance of goods and collected from customers can be refunded if post clearance transaction is made through credit notes. This question was answered by the Hon ble High Court against the Revenue in the case of CCE, Chandigarh vs. Vardhman Industries Ltd. reported in 2007 (8) STR 429 (P H) and on that basis the Hon ble Punjab Haryana High Court dismissed CEA No. 97 of 2006 filed by the Commissioner of Central Excise, which was upheld by the Hon ble Supreme Court. The ratio of this judgment is squarely applicable in the present case. 9. In the case of Sudhir Papers Ltd. (supra), the Hon ble High Court of Karnataka held as under:- 7. Therefore the law on the point is well settled. As is clear from Section 11-B of the Act when a claim for refund is made within the period stipulated, if the appropriate authority on consideration of such claim comes to the conclusion that the applicant has paid excess duty, after holding so, he should pass an order directing crediting of the said excise duty to the welfare fund. It is only if the assessee claims refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entitled to refund of excess demand made from 8-3-2001 to 31-3-2001. (4) In so far as the claim for the period from 1st April 2001 to December 2001 is concerned the entire claim is well within time and the claimant is entitled to refund. From the above judgment, it is settled that even if the excess duty for which refund is sought for is collected but subsequently returned by way of credit note, it cannot be said that the incidence of refund amount has been passed on. It is also observed that since the appellant admittedly accounted for the said amount as receivable in the balance sheet, it is a sufficient evidence to hold that incidence of duty has not been passed on, otherwise the amount cannot be accounted for as receivable. 10. As regards the judgments relied upon by the Revenue, I have observed that both the Larger Bench decisions were delivered much before the judgments of the Honble Karnataka High Court in the case of Om Pharmaceuticals Ltd. (supra) and Sudhir Papers Ltd. (supra). The judgment of the Hon ble Punjab Haryana High Court in the case of Vardhman Industries which was upheld by the Hon ble Supreme Court, directly supports the case of the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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