TMI Blog2017 (4) TMI 851X X X X Extracts X X X X X X X X Extracts X X X X ..... re, could not issue excisable invoices passing on the duty in turn to their customers - appeal dismissed - decided against Revenue. - Central Excise Appeal No. 5 of 2017 (O&M) - - - Dated:- 18-4-2017 - MR. S.J.VAZIFDAR AND MR. ANUPINDER SINGH GREWAL For The Appellant : Mr. Sourabh Goel, Advocate For The Respondent : Mr. Amrinder Singh, Advocate, S.J. VAZIFDAR, CHIEF JUSTICE : This is an appeal against the order of the Custom and Excise Tax Appellate Tribunal allowing the respondent s appeal against the order of the Commissioner Central Excise (Appeals), Gurgaon. 2. According to the appellant, the following substantial questions of law arise:- A) Whether the impugned Final Order No.A/50090/2016-SM[BR] dated 22.01.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. The appellant filed an application for refund with the Assistant Commissioner of Central Excise, Sonepat which was not sanctioned. The question was whether or not the respondents had passed the burden of central excise duty to the customers. The respondents relied upon the credit notes issued by it to its customers in respect of the discounts as well as the certificate of an independent Chartered Accountant certifying that the incidence of duty had not been passed on to the customers. The certificate states that the respondents had paid the excise duty for the period October, 2012 to December, 2012 on provisional basis on the assessable value of invoices raised from the factory and depots; that the respondents had not passed on any amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit note is not in a form of tax invoice, central excise duty elements cannot be depicted separately upon credit notes issued. The customers/dealers deducted the value of duty and duty elements as shown in the credit notes (shown merged both elements) from the bills and paid lower amount to the appellant, unjust enrichment does not apply as customers/dealers did not allow passing of burden by deducting from bills. Evidencing the same, sample copies of Central excise invoices, credit notes and ledger accounts of the customers/dealers are attached herewith as Annexure-5 . 6. The Tribunal accepted the explanation obviously keeping in mind the other facts and circumstances of the case which we will now refer to. 7. The Tribunal noted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the goods had been made by the respondents after adjusting the amount mentioned in the credit notes raised by them. It is also important to note the Tribunal s observation that the documents in this regard were produced by the respondent before the authorities but that the same had not been considered in the proper prospective while adjudicating the claim for refund. 8. Mr. Amrinder Singh, the learned counsel appearing on behalf of the respondents also contended that the dealers in turn had not passed on the duty to any other person. In support of this contention he rightly relied upon the fact that the dealers were not registered with the department and therefore, could not issue excisable invoices passing on the duty in turn to their ..... X X X X Extracts X X X X X X X X Extracts X X X X
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