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TMI Blog2023 (12) TMI 899X X X X Extracts X X X X X X X X Extracts X X X X ..... ants allow various discounts to their customers viz. quantity discount, prompt payment discount, product discount, cash discount etc. Since the exact quantum of discounts are not known at the time of sale of the goods from the depots, consequently, they have resorted to provisional assessment in accordance with Rule 7 of the Central Excise Rules, 2002 and discharge duty at the factory gate on the provisional price at the time of its clearance. 4. After computing the exact quantum of discount, they pass the same to the customers by raising credit notes and consequently approach the department for finalisation of provisional assessment. Considering the evidences of passing on of different discounts to customers, the assessing authority finalise the provisional assessment by adjusting the duty short paid with the duties excess paid in a particular month. After netting off the duty for the month, duty short paid is recovered and excess duty paid is allowed as refund subject to verification of fulfilment of the bar of unjust enrichment. In the present case, the adjudicating allowed the refund of excess duty paid after due adjustment between the duty short paid to that of duty excess pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the course of finalisation of assessment, if it is established that the assessee has paid excess duty, the amount should be set off against the duty short-paid during the month to arrive at the net liability of duty and refund payable subsequent to finalisation of assessment. 5.2 In support, he has placed reliance on the judgment of the Hon'ble Karnataka High Court in appellant's own case in Principal Commissioner of Central Tax, Mysore vs. M/s. Vikrant Tyres Ltd.: 2021-VIL-729-KAR-CE. Further, he has submitted that the Hon'ble Karnataka High Court in the case of Toyota Kirloskar Auto Parts Pvt. Ltd. vs. CCE, LTU, Bangalore: 2012 (276) ELT 332 (Kar.) held that inter adjustment of duty short-paid and excess duty-paid is permitted and interest is not chargeable if the duty-paid in excess than short-paid. It is his contention that reliance placed by the learned Commissioner (A) on the judgment of the Hon'ble Supreme Court in the case of Commissioner of Central Excise, Madras vs. Addison & Co. Ltd.: 2016 (339) ELT 177 is misplaced as the said judgment has been considered by Hon'ble Karnataka High Court in Vikarant Tyres' case(supra). Further, he has submitted that in any case the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... off the duty i.e., adjustment of the duty short paid against the excess payment of duty so as to arrive at the net result of duty liability or refund as the case may be. The purpose of the said provision is to arrive at the appropriate duty payable at the time of clearance of goods from the factory premises and to determine the liability or refund. He has submitted that the Hon'ble Supreme Court in Addison & Co. Ltd. case (supra) laid down applicability of the principles of unjust enrichment to cases where the discounts are passed on by way of issuing credit notes. 6.2 The Ld. A.R has also referred to the principle of law laid down by the Larger Bench of the Tribunal in the case of Excel Rubber Ltd.: 2011(3) TMI 527-CESTAT-New Delhi- LB. in support of his argument that principles of unjust enrichment is applicable to all refunds arise during the course of finalisation of provisional assessment. Further, he has referred to the judgment of Hon'ble Madras High Court in the case of TVS Electronics Ltd. vs. CCE, Chennai: 2017 (348) ELT 630 wherein the Hon'ble High Court following the judgment of the Hon'ble Supreme Court in Addison & Co. Ltd. case held that the mandatory exercise has t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount payable. During the said exercise for a particular month, the result could be excess payment of duty in certain cases and short payment in other cases. The assessing authority after adjusting the duty excess paid against the short-paid, arrives at the net result i.e., either excess payment or short-paid during the month is recoverable or refundable. Consequently, the recovery/refund is accordingly directed. The Revenue's objection is that the duty excess paid cannot be adjusted against the duty short-paid during a particular month/period of assessment to arrive at the net result of refund or liability. It is the Revenue's contention that there is no specific provisions under Rule 7 of the Central Excise Rules, 2002 directing such adjustment/netting off duty. 11. Revenue has referred to the judgment of the Hon'ble Madras High Court in the case of TVS Electronics Ltd. case (supra) which followed the judgment in Addison & Co. Ltd. passed by the Hon'ble Supreme Court in directing that the refund amount arising due to provisional assessment be subjected to unjust enrichment. 12. The appellant's contention on the other hand is that the very purpose of provisional assessment is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears. In this context, it would be preferable to refer to the judgment of the Hon'ble Apex Court in the case of Commissioner of Central Excise, Allahabad vs. Surcoat Paints (P) Ltd. [2008) E.L.T. 4 (SC) wherein, the Hon'ble Apex Court has held that the Revenue having accepted the decision given by the Tribunal in another case of the same nature, is precluded from challenging the similar order passed in respect of another unit. If so, in the very same assessee's case if the refund orders are accepted for particular years, the same cannot be challenged relating to other years. Revenue cannot pick and choose the assessment years for challenging the orders having similar effect. Moreover, as observed by the First Appellate Authority, the issue of unjust enrichment has been raised for the first time on the sanction of refund order consequent on finalisation of provisional assessment. The authorities have admitted that the credit notes were issued by the assessee to their dealer representing various discounts which have been actually passed on, in accordance with marketing circulars/policies. It is also observed that on verification of sample depot invoices at the time of completion of p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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