TMI Blog2023 (2) TMI 941X X X X Extracts X X X X X X X X Extracts X X X X ..... variation with regard to both refund claims. It is not disputed that there has been excess payment of duty due to the downward price revision. In the case of COMMISSIONER OF C. EX., COIMBATORE VERSUS FLOW TECH POWER [ 2006 (1) TMI 37 - HIGH COURT OF JUDICATURE (MADRAS) ], the Hon ble High Court of Madras had held that when the assessee has submitted the Chartered Accountant certificate to prove that the duty has not been passed on to their customers, the refund is not hit by unjust enrichment. Thus, the refund is not hit by unjust enrichment. The assessee is eligible for refund on merits as well having satisfied the test of unjust enrichment. Appeal dismissed. - EXCISE APPEAL No. 95/2012 with EXCISE APPEAL No. 42825/2014 - FINAL ORDER No. 40056-40057/2023 - Dated:- 20-2-2023 - MS. SULEKHA BEEVI C.S., MEMBER JUDICIAL AND SHRI VASA SESHAGIRI RAO, MEMBER TECHNICAL For the appellant/respondent : Ms. Sridevi Taritla, ADC, Authorized Representative For the respondent/appellant : Shri M. Karthikeyan, Advocate ORDER The issue involved in both these appeals being the same, they were heard together and are disposed by this common order. The parties are ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the year 2009-2010, the appellant has claimed the balance amount is shown as amount receivable from the government in their account. Since the above cited case law is applicable to the facts of the case in hand, I uphold the above claim of the appellant. 7. In view of the above discussions and plethora of decisions by various courts on the similar issue, I hold that the appellant is entitled to refund claimed by them. Hence, I set aside the input Order-in-Original and allow the appeal. 2.3 Aggrieved by the above order of sanction of refund, the department then has filed the appeal No. E/95/2012. 2.4 The assessee had filed another refund claim for refund of Rs.11,86,500/- dated 12.01.2012 for the period from 01.01.2011 to 12.01.2012. This claim was also filed for the refund of excess duty paid towards the downward price revision based on the negative supplementary invoices raised to M/s.PGCL. The assessee also furnished a Chartered Accountant Certificate. A Show Cause Notice was issued proposing to reject the refund claim. After due process of law, the original authority sanctioned the refund claim, wherein it was observed that the claim is not hit by doctrine of unjust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngaged in the manufacture of ACSR conductors and cleared the same to M/s. PGCL on payment of appropriate excise duty. The negotiated price is adopted for the purpose of payment of duty. As the products in question are aluminium and steel based, the prices vary according to the market fluctuation on a regular basis. At the time of clearance, as the actual market price of aluminium is not ascertainable, it was agreed between the buyer and the assessee to subsequently revise the price based on the actual market price prevalent at the time of clearance of the impugned goods. Consequently, the prices were revised at regular intervals, the actual price was worked out and the payments were released for each and every invoice. In cases, when the prices adopted by the assessee was lower, then the assessee would pay the differential duty along with interest and raise a supplementary invoice on PGCL, who would then release such payments after receipt of the said supplementary invoices. The learned Counsel also pointed out that as per the agreement between the parties, the contract price is exclusive of taxes and duties and such taxes/duties are reimbursable by the buyer at the applicable rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hough the adjudicating authority sanctioned the refund observing that the assessee has not collected the duty from M/s. PGCL, the Commissioner (Appeals) has set aside the sanctioned refund on merits also, which is totally erroneous. 3.5 The appellant has also produced a certificate issued by M/s. PGCL along with the Chartered Accountant Certificate. This certificate issued by M/s. PGCL would show that M/s. PGCL has not reimbursed to the assessee the amount of excess duty on negative price variation. The learned Counsel argued that the assessee has sufficiently proved that they have shouldered the burden of excess duty. The department ought to have sanction the refund. 3.6 The learned counsel relied on the decision in the case of M/s. EPE Process Filters Accumulators Pvt. Ltd. Vs. CCE ST, Hyderabad reported in 2017 (352)ELT 398 (Tri.-Hyd.), to argue that when the assessee has not collected the excess duty, it cannot be held that the refund is hit by unjust enrichment. The decision in the case of Commissioner of CCE ST, Hyderabad-IV Vs. Victory Transformers and Switchgears Ltd. reported in 2017 (358) ELT 354 (Tri.-Hyd.) was relied to argue that when there is a price varia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut from the facts that the contract entered with PGCL for supply of goods has a price variation clause. For the purpose of calculation of variation, the said clause has devised a formula based on which each and every supply made by the assessee was worked out and final payment was made to PGCL. The assessee then pays the differential duty by raising supplementary invoices wherever there was price increase. In case there is a downward price revision, they raise negative supplementary invoices and 100% negative bill value in order to adjust the excess amount billed. As per the contract, adjustment of price and payment would be made at least once in a month. When the assessee issues a negative invoice for downward price revision, the excess payment initially made by M/s. PGCL would stand adjusted against the final amount payable by M/s. PGCL. Thus, the excess payment was borne by the assessee. The assessee has furnished the supplementary invoices for the downward price variation with regard to both refund claims. It is not disputed that there has been excess payment of duty due to the downward price revision. 6.3 The case of the department is that the assessee has collected the exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reached for a lower price, retrospective effect was given to it and consequently, for the aforesaid period, the appellants became liable to repay the differential price along with differential duty to the buyers. They did this by way of credit notes. Subsequently, they filed refund claim with the Department for the excess duty paid by them at the time of original clearance of the goods. These refund claims were rejected by the original authority but allowed by the first appellate authority. Hence the present appeal of the Revenue. 2. After hearing both sides and considering their submissions, I note that the appellant objects to the refund on the ground of unjust enrichment. It is submitted that, once the goods were cleared on payment of appropriate duty, refund of such duty cannot be claimed after issuing credit notes to the buyer. The lower appellate authority has relied on the Tribunal s decision in Indian Aluminium Cables Ltd. v. Collector - 1997 (95) E.L.T. 386 (Tribunal), wherein it had been held that, if price was revised upwards or downwards in terms of price escalation clause in the contract between the assessee, and his buyer, the Department or the assessee, as the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . There is no merit in the Revenue s appeals. Hence the same are rejected. 6.6 The Tribunal in the case of M/s. EPE Process Filters Accumulators Pvt. Ltd. Vs. CCE ST, Hyderabad reported in 2017 (352) ELT 398 (Tri.-Hyd.), it was observed a under:- 8 . Under Section 12B of Central Excise Act, 1944 when the invoice is raised including the excise duty a presumption is raised that the incidence of duty is passed on. But this presumption is a rebuttable one. When the invoice was mistakenly raised including the duty and when excise duty was not collected, there is no question of the burden of duty being passed on. The decision relied by the department in the case of M/s. Addison and Company Ltd., pertains to the case wherein the refund was sought for the excess duty paid by the assessee on account of discounts given to buyers. In facts of those cases before the Hon ble Apex Court, the assessee was periodically passing on the turnover discount to their dealer by way of credit note issued to them and then filed refund claim for the Excise duty element on the discounts. In the case before me, refund is not claimed of the duty element on discount. The appellant paid excise duty wro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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