Tax Management India. Com
Law and Practice  :  Digital eBook
Research is most exciting & rewarding


  TMI - Tax Management India. Com
Follow us:
  Facebook   Twitter   Linkedin   Telegram

TMI Blog

Home

2016 (8) TMI 493

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... , 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 .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... lso alleged that as the stockists/dealers did not know the quantum of discount before clearances, the refund would be hit by unjust enrichment. After adjudication, the original authority rejected the refund claim. In appeal, the Commissioner(Appeals) upheld the rejection. Being aggrieved, the appellants are before the Tribunal. 2. On behalf of the appellant, the learned counsel Shri Y. Sreenivasa Reddy, contended that the refund application has been rejected on two grounds. Firstly, that the appellant did not opt for provisional assessment and secondly, that the refund is hit by unjust enrichment. In its practice, the cement industry extends various discounts such as quantity discount, cash discount and normal trade discount to the deale .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... discount to the stockists, the appellants ought to have opted for provisional assessment. Further that appellant has not discharged the burden of establishing that the incidence of duty has not passed on to the other. He placed reliance on the decision cited in Sangam Processors Ltd. [1994(70) ELT A.182.] He pleaded that the appeal may be dismissed. 4. I have heard the rival submissions. The first allegation raised is that appellants had not disclosed the quantum of discount to the stockists at the time of clearances and therefore without opting for provisional assessment, the claim made for refund is not sustainable. It is contended by appellant that provisional assessment is required only when the appellant did not intend to pay duty o .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... arance of goods, which is the date of payment of duty, hence, the criterion of provisional assessment is irrelevant. 5. The second objection raised by Revenue is that the incidence of duty has been passed on to buyers and therefore the refund is barred by unjust enrichment. The appellant has submitted a Chartered Accountant certificate showing that in the credit note, they have not recovered the excise duty that the duty has been borne by them and has not been passed on. The learned AR as well as the authorities below have placed reliance on the judgments laid in Sangam Processors Ltd. case (supra) and Grasim Industries Vs. CCE, Bhopal [2011(27) ELT 164 (SC)]. The Hon ble High Court of Andhra Pradesh in the case of A.P. Paper Mills Ltd .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

 

 

 

 

Quick Updates:Latest Updates