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TMI Blog2023 (9) TMI 1058X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned period, the appellant cleared their product i.e. Air Conditioner at old rate of abatement, therefore, on coming to know of their mistakes filed refund claim of Rs. 15,23,922/-. On being asked to show that there was no unjust enrichment, as per presumption available in Section 12B of the Central Excise Act, 1944, the appellant relied upon the Chartered Accountant's Certificate dated 29.10.2012 which reads as follows:- "Further, it is on the part of the assessee to prove that the incidence of Central Excise duty has not been passed on to ultimate customer as per the provision of section 11B of the CEA,. The Chartered Accountants M/s S R Batlibol & Associates vide their certificate dated 29.10.2012 stated that the excess excise d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot produced such documents before the adjudicating authority resulting in to rejection of their claim. So far as the Chartered Accountant's certificate produced is concerned, I hereby mention the excerpts of Sub-Para-D of Para - I, that:- "we have been informed by the management that the above excise duty has not been directly or indirectly passed on to the customers. We have relied upon such representation from the management and have not undertaken any procedure on the same". Plain reading of said excerpts of the certificate, it can be concluded that such certificate cannot be treated proper as the auditors have simply relied the representation from the management and have not undertaken any procedure on the same." 2.1 In shor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied additionally upon the decision of "Apnacar.Com Pvt. Ltd. Vs Commissioner of Central Tax Bangaluru South Commissionerate as reported in 2021 (55) GSTL 166 (Tri.-Bang.) to indicate that Chartered Accountant Certificate if issued at the request of the appellant cannot be considered as conclusive proof to decide any other issues. 5. Considered, the rival submissions. This Court has gone through the records as are available on the file. The appellant have contended that consequent upon abatement being varied vide Notification No. 26/2012 dated 10.05.2012, they could not clear the goods from factory by claiming higher abatement due to oversight and goods were cleared by them to their depot and not to the ultimate consumer as on the date of f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including state levies varied while computing abatement is known, it cannot be stated by a party categorically that it paid which tax in excess, specially when some state levies are meant for wholesalers and retailers. It is thus clear that in MRP based assessment, refund of non claim of abatement cannot be purely treated as a refund of excise duty paid in excess only as per Section 11B. In the proceedings before this Court, such information as to what all taxes went into working of abatement is woefully lacking. Party has also not produced the same by procuring the same under R.T.I or otherwise. Further, there is nothing on record from the party as to what happened beyond depot and whether apart from itself, all retailers and wholesaler p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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