2018 (10) TMI 388 – CESTAT NEW DELHI – TMI – Refund of excise duty extra paid – test of unjust enrichment – excise duty extra paid on the discount amount which is returned by him to his dealers in the form of credit notes – Held that:- This issue has also came up before this Tribunal in the appellant-assessee’s own case for the previous period COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, INDORE VERSUS M/S. BRIDGESTONE INDIA PVT. LTD. [2015 (9) TMI 981 – CESTAT NEW DELHI] wherein the department was in appeal and it has been held on the same issue by this Tribunal that in this particular business model of the appellant assessee, no excise element is being retained by them, that is to say that benefit of reduced price are being passed on to the ultimate customers and therefore, there is no question of unjust enrichment.
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In the present case, it can be seen that though the appellant assessee has charged the price of ₹ 2953/- inclusive of excise duty from their buyer, further
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ers in the form of credit notes.
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Refund allowed – appeal allowed – decided in favor of appellant. – Excise Appeal No. 50610-50611 of 2018 – A/52780-52781/2018-EX[DB] – Dated:- 30-7-2018 – Mr. Anil Choudhary, Member (Judicial) And Mr. C L Mahar, Member (Technical) Shri S Thirumalai, Advocate for the Appellants Shri M R Sharma, AR for the Respondent ORDER Per: C L Mahar: The brief facts of the matter are that the appellant-assessee is engaged in manufacture of excisable goods namely, tyres and tubes falling under Chapter 4011 and 4013 of Central Excise Tariff Act, 1985. As per the business model of appellant assessee, the manufactured tyres are sold to original equipment manufacturers as well as in the replacement market i.e. for general sale in the market. The appellant clears tyres from its manufacturing plant on payment of Central Excise duty on the transactional value to its various dealers in the market. As per the marketing policy of the appellant, they provide various types
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tyres effected by them during the period January, 2016 to March, 2016. The Deputy Commissioner vide this Order in Original No. 714/DC/Refund/ Div I /2016-2017 dated 20.3.2017 rejected the refund claim on the ground that the appellants have not been able to satisfy the adjudicating authority on the issue of unjust enrichment to saying that it appears that the burden of excise duty has already been passed on to the customers and therefore, the appellants are not entitled for refund under section 11B(2) of the Central Excise Act. The appellant assessee feeling aggrieved by the above order in original have appealed to learned Commissioner (Appeals) who vide his order dated 30.9.2017 has rejected the appellants appeal and the appellant assessee are before us for allowing the refund of above mentioned amount. It has been the contention of the learned advocate that they have paid the Central Excise duty on the full value of tyres and the trade discounts / quantity discounts were offered to th
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is a general practice in the trade of tyres and the discounts are in a way used for promoting the sale of their products in the market. Learned advocate has also relied upon the decision of this Tribunal in the case of their own appeal being Final Order No. 51950-51951/2015-Ex(DB) dated 4.6.2015 wherein this Tribunal has held that;- 8. As regards the question of unjust enrichment, there is no dispute that the discounts have been passed on by the issue of credit notes. Once the credit notes are issued by the assessees to his dealers, the invoice price mentioned in the invoices issued earlier would stand reduced to that extent and in such a situation, the burden of proof would shift to the Department and it would be for the Department to establish that the credit notes issued are bogus. In the present case, there is no such evidence produced by the Department. In viewe of this, following the judgment of the Hon ble Rajasthan High Court in the case of A K Spintex Ltd. (supra) and the judg
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rtment was in appeal and it has been held on the same issue by this Tribunal that in this particular business model of the appellant assessee, no excise element is being retained by them, that is to say that benefit of reduced price are being passed on to the ultimate customers and therefore, there is no question of unjust enrichment. 7. As far as the present appeal is concerned, we find from the record of the appeal that for example; in one case the appellant assessee has sold a tyre of PSR 165/80 R14 S 248 to M/s. Laxmi Tyres, Pune at a price of ₹ 2953/- inclusive of Central Excise duty. The buyer namely, M/s. Laxmi Tyres, Pune has further sold the tyre of same specification to his buyer at a price of ₹ 2888/-. We therefore, feel that the appellant assessee has been passing on the benefit of trade discounts to their ultimate down stream buyers also. 8. Thus, it can be seen that though the appellant assessee has charged the price of ₹ 2953/- inclusive of excise duty
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paid by them on the discount amounts returned by them to the dealers in the form of credit notes. While confirming the above opinion, we also take shelter of Hon ble Supreme Court decision in the case of Commissioner of Central Excise, Madras vs. Addison & Co. Ltd. [ 2016 (339) ELT 177 (SC)] wherein it was observed as under:- 36. 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 view of the facts of this case being different from Civil Appeal No. 7906 of 2002, the appeal preferred by the Revenue is dismissed. 10. In view of the above, we do not find any merit in the order of Commission
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