TMI Blog2015 (8) TMI 1332X X X X Extracts X X X X X X X X Extracts X X X X ..... f the same, since the incidence of such excess paid duty has been borne by the appellant itself. Therefore, the impugned order is set aside and the appeal is allowed in favour of the appellant with consequential benefits - appeal allowed - decided in favor of appellant. - E/59490/2013-[SM] - Final Order No. 54181 /015 - Dated:- 20-8-2015 - Mr. S.K. Mohanty, Member (Judicial) Mr. H V Ghirnikar, (Chartered Accountant) for the Appellant Mr. R K Gupta, DR for the Respondent ORDER This appeal filed by the appellant, is directed against the impugned order dated 25.06.2013 passed by the Commissioner (Appeals), Central Excise and Customs, Raipur, upholding rejection of refund claim in the Adjudication Order. 2. Brief facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne year from the relevant date; that the claimant (appellant herein) has paid the excess amount of duty on account of wrong filling of unit price, instead of the price quoted in the purchase order; that the consignee vide their trade certificate dated 01.05.2012 has certified that they have not availed cenvat credit of excise duty paid by the appellant. On the basis of the above, the Range Superintendent finally concluded that the excess charged duty has not been passed on to the consignee, and as such, the question of unjust enrichment does not arise. However, without considering the verification report submitted by the Range Superintendent, the Assistant Commissioner of Central Excise passed the Adjudication Order dated 06.09.2012, rejec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued by the Chartered Accountant at the appellant s end, as well as the certificate prepared at the buyer s end, which are to the effect that the appellant has not received the excess charged Central Excise duty from its customer, and as such, the excess duty paid is eligible for refund. To justify his stand that the appellant is entitled for refund of excess paid Central Excise duty and the same cannot be transferred to the Consumer Welfare Fund on the ground of unjust enrichment, the ld. Consultant has relied on the judgement of Hon ble Punjab Haryana High Court in the case of CCE Ludhiana vs Bharat Box Factory Ltd. reported in 2007 (218) ELT 355 (P H) and the judgment of Hon ble Karnataka High Court in the case of Sudhir Paper Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. I find that in the impugned order, the Commissioner (Appeals) has denied the refund benefit on the ground that the price charged at the time of clearance of the goods was final, in absence of any option exercised by the appellant for provisional assessment under Rule 7 of the Central Excise Rules, 2002; that fluctuation in prices subsequent to clearance of goods is not affected the liability to payment of excise duty; that reduction of prices subsequent to clearance of goods on payment of duty, for whatever reason, not to affect the liability to payment of Central Excise duty. Thus according to the Ld. Commissioner (Appeals) once the duty has been passed on at the time of clearance of the finished goods from the factory, subsequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accounting principles. The higher amounts initially charged in the invoices have been debited to the buyer s account, which was subsequently adjusted by making necessary credit entry, reflecting the actual payments received from the buyer and for the remaining amount credit note has been issued by the appellant to its buyer for accounting adjustment. Further, the certificate furnished by the Chartered Accountant at the suppliers, as well as, at the buyer's end, proves beyond any shadow of doubt that the incidence of excess paid Central Excise duty has not been passed on and also no cenvat credit has been taken by the buyer, in respect of excess paid central excise duty. Subsequent issue of credit note, after clearance of goods under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t though excess duty was shown in the invoices due to computer package error, the buyer has settled the account based on the agreed price indicated in the purchase orders issued by them. Since the excess charged duty has not been considered by the buyer in its account, there was no scope for issuance of any debit note. The credit entries made by the appellant in its books and subsequent issuance of the credit notes in favour of its buyers, proves the matter beyond any doubt that the appellant has received only that price for the goods, which was stipulated in the purchase order, and paid due to system error, has been borne by the appellant, for which the refund claim has been lodged. The other cases cited by the Ld. DR are clearly disting ..... X X X X Extracts X X X X X X X X Extracts X X X X
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