TMI Blog2020 (3) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... ture of the Chartered Accountant s certificate is not endorsed in the worksheets. There are no substance in the grounds raised with regard to the Chartered Accountant s certificate. Wherever the excise duty has not been passed on to the buyer the same is noted in the work sheet. it is shown as discounts passed on which credit notes are allowed. One has to read the certificate issued by the Chartered Accountant along with worksheet. In such as case, it can be seen that only for the incidence where the duty has not been passed on to another, the appellant has claimed refund. Thus, on a perusal of the Chartered Accountant s certificate, no discrepancy found, so as to reject the same. The credit note/debit note itself would reflect the amount paid and the payments cannot be seen from the bank transactions or such other payment receipts. Therefore, the allegation that the appellant has not produced payment receipts and bank statements cannot sustain. Since both the authorities have stated that the appellants have not produced the credit note/debit note before them and only produce a detailed worksheet, the matter can be remanded to the adjudicating authority for reconsideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of clearance from the factory to depot, the appellant discharges excise duty on the NDP, treating it as cum-duty value, deducting a notional value towards discounts. The abatements are computed on a notional basis as the discounts, which are actually passed on to the customers are not determinable at the time of clearance from the factory. Subsequently, the goods are received by the depots for sale to the dealers. 2.2 With respect to certain discounts viz., turnover and prompt payment discount, the actual quantum of discount is declared on the face of the sale invoice itself issued by the depot to the dealers and accordingly deduction in respect of the same is claimed from the NDP on actual basis. There is no dispute with respect to this abatement claimed. 2.3 Whereas, other discounts such as, fleet discount and quantity slab discount are passed on subsequent to the sale made by the dealer in the form of credit notes and corresponding debit notes. The appellant, on quarterly basis, determines the discounts to be passed on to the dealers based on targets achieved (in terms of their marketing policy) and regularizes the differential discounts by issuance of credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the department in denying the refund claim. 3.2 The appellant further submits that the manner of disclosure in the books of accounts is not the only way in which to prove that the duty incidence has not been passed on. If the assessee is successful in proving by other means that the duty incidence has not been passed on, like details of the credit notes or debit notes, or Chartered Accountant certificates, the burden cast on the assessee should be held to have been discharged. Reliance is placed on the decision of Hon ble Tribunal in M/s. Johnsons Matthey (India) Ltd. V. CCE, Delhi, reported in 2017 (3) TMI 1449 - CESTAT Chandigarh. 3.3 In the present case, the necessary documents namely, details of debit notes and credit notes and CA Certificate, all to prove that duty incidence has not been passed on are available and submitted by the appellant. Accordingly, the finding in the impugned Order is erroneous. 3.4 In this regard, the appellant places reliance of the decision of the Hon ble Apex Court in CCE, Madras vs Addison Co Ltd. [2016 (339) ELT 177 (SC)]. In para 35 and 36 of the decision, which is more applicable to the present case, it was held that credit notes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter. He submitted that the appellants have not produced any documents to show that the duty has not been passed on to another. He adverted to para 8 of the Order-in-Appeal and submitted that the appellants have not furnished the payments receipts, bank statements etc., pertaining to the transactions to prove that the burden of duty has not been passed on. As per section 12B of Central Excise Act, 1944, there is presumption that the duty has been passed on when such duty is reflected in the invoices issued by the appellant. In the present case, the Chartered Accountant s certificate produced is not correct since the signature of the Chartered Accountant is only on the certificate and each page of the work sheet does not contain the full signature of the Chartered Accountant. Further, the amount claimed as refund is not shown as Receivables in their balance sheet. The draft circular relied by the adjudicating authority clarifies that the appellant has to furnish relevant documents along with the Chartered Accountant s certificate to prove that the duty burden has not been passed on. He thus supported the findings in the impugned order. 5. Heard both sides. 6. The issue that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egation that the appellant has not produced payment receipts and bank statements cannot sustain. 8. One other ground on which the rejection has been made is that the appellants have not mentioned the amount as Receivables in the balance sheet. In the case of Commissioner of Central Excise, Madras Vs M/s. Addison Co. Ltd., reported in 2016 (339)E.L.T.177 (S.C.), the Hon ble Apex Court had occasion to analyse the issue of eligibility of refund claim on credit notes and the test of unjust enrichment. In Paras 35 and 36, Civil Appeal No.8488 of 2009 was discussed. The relevant paragraphs is reproduced herein below:- 35. The respondent-Assessee is a 100 per cent Export Oriented Unit (EOU) manufacturing cotton yarn. The respondent filed an application for refund of an amount of ₹ 2,00,827/- on 14-8-2002 on the ground that it had paid excess excise duty at the rate of 18.11 per cent instead of 9.20 per cent. The Assessee initially passed on the duty incidence to its customers. Later the Assessee returned the excess duty amount to its buyers which was evidenced by a certificate issued by the Chartered Accountant on 2-8-2002. The refund claim was rejected by the Deputy Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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