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M/s. Sagar Cement Ltd. Versus CC&CE, Hyderabad

2016 (8) TMI 493 - CESTAT HYDERABAD

Refund 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 .....

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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 Sudhi .....

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nt Shri Deepak, Authorised representative for the respondent ORDER [ Order per: Sulekha Beevi, C. S. ] The appellants are manufacturers of cement and are clearing the same on payment of duty to customers, dealers, stockists, consignment agent and depots. They filed a refund claim for an amount of ₹ 17,98,058/- being the excise duty paid on the discounts passed on to the dealers and stockists, subsequent to clearances. The discount amount was passed on through credit notes. The appellant ha .....

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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, .....

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appellant had initially paid Central Excise duty on higher amount than the actual transaction value, they filed refund claim. In the present case, the claim pertains to June 2011. They furnished all documents including the certificate of Chartered Accountant certifying that the appellant has not recovered the excise duty on the credit notes. That the authorities below erred in holding that the discounts were not known to the stockists before clearance and that therefore appellant ought to have o .....

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AR Shri Deepak supported the findings in the impugned order. He argued that when the appellants did not disclose the amount of 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 r .....

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scount 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 .....

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er. Also, in our view the relevance of assessment either provisional or otherwise comes into play only for the purpose of computation of the time-limit from the relevant date, in filing the refund claim under Section 11B of CEA, 1944. It has nothing to do with the eligibility of refund. In the present case, the refund claim was filed within one year from the date of clearance of goods, which is the date of payment of duty, hence, the criterion of provisional assessment is irrelevant. 5. The seco .....

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