TMI Blog2023 (3) TMI 890X X X X Extracts X X X X X X X X Extracts X X X X ..... Co. Ltd. [ 2016 (8) TMI 1071 - SUPREME COURT ], where it was held that Except for a factual dispute about the genuineness of the certificate issued by the Chartered Accountant and the credit notes raised by the Assessee regarding the return of the excess duty paid by the Assessee, there is no dispute in this case of the duty being passed on to any other person by the buyer. As it is clear that the Assessee has borne the burden of duty, it cannot be said that it is not entitled for the refund of the excess duty paid. In the case of L T [ 2020 (4) TMI 384 - CESTAT AHMEDABAD ] also the identical issue has been considered wherein it was held that even though initially the amount of service tax was recovered but subsequently it was ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the customers but subsequently returned the same by issuing the credit note, therefore, there is no unjust-enrichment on the part of the appellant. He further submits that even though the appellant have initially charged service tax to the customer, the same was not further passed on by the said customers to any other person. He placed reliance on the following judgments:- CCE Vs. Addison Co. Ltd -2016-VIL-49-SC-CE Jai Crop Ltd Vs. CCE 2016 VIL-834-CESTAT-MUM-CE Larsen Tourbo Limited Vs. CCE 2020- VIL- 133- CESTAT-AHM-ST Shayam Steel Industries Ltd Vs. CGST 2021- VIL- 419- ESTATKOL- CE Gail (India) Ltd Vs. CCE 2016 (46) STR 698 (T) 3. Shri. Rajesh k Agarwal, Learned Superintendent (AR) appearing on be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent-Assessee, this Court by its judgment dated 11-3-1997 in Addison Co. Ltd. v. Collector of Central Excise, Madras (supra) held that the turnover discount is an admissible deduction. This Court approved the normal practice under which discounts are given and held that the discount is known to the dealer at the time of purchase. The Additional Solicitor General submitted that any credit note that was raised post clearance will not be taken into account for the purpose of a refund by the Department. We do not agree with the said submission as it was held by this Court in Union of India v. Bombay Tyre International (supra) that trade discounts shall not be disallowed only because they are not payable at the time of each invoice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication for refund of an amount of Rs. 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 Commissioner of Central Excise, Kolhapur Division vide an order dated 24-9-2002 on the ground that the Assessee did not submit either the credit notes or the Chartered Accountant‟s certificate at the time of filing the refund application. Not satisfied with the genuineness of the documents the Deputy Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s dismissed. This issue has already been considered by this tribunal in the case of Jai Crop Ltd (Supra) wherein the Tribunal has passed the following order. 7. We have carefully considered the submissions made by both the sides. We find that the learned Commissioner (Appeals) in principal held that sales tax even though paid subsequently, the same is a permissible deduction. Accordingly, excise duty attributed to the said sales tax amount is refundable. However, he held that since the full invoice value was recovered by the appellant from the buyer, incidence of duty stand passed on. Accordingly, refund should be credited to Consumer Welfare Fund. This finding of the Commissioner (Appeals) is based on certain decision of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicating Authority. However, the same was produced before the Commissioner (Appeals) but from the findings of Commissioner (Appeals), I observe that said certificate was not considered. I find that as per the judgment of Hon‟ble Supreme Court in the case of Addison Co. Limited (supra), even though initially the amount was passed on but if the same is subsequently reversed by returning the amount of refund to the service provider, it was held that the incidence has not been passed on. Therefore, in the present case also, even though initially the amount of service tax was recovered but subsequently it was returned. The incidence primafacie was not passed on. However, this being the factual aspect, needs to be verified by the Adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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