The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) held that the refund of nonclaim of abatement cannot be purely treated as a refund of excise duty paid in excess only as per Section 11B of the Central Excise Act,1944.
Hitachi Life And Solution India Ltd, the appellant assessee claimed having paid excise duty sought a refund from the department as abatement percentage permitted on the product and claimed the refund of excess duty paid.
The Commissioner (Appeals) rejected the refund claim by the assessee which was sought for the excess payment of excise duty.
S.J Vyas, the counsel for the assessee contended that the rejection of the refund was improper and that certificate given by Chartered Accountants based on their books of accounts and given by an expert was an acceptable documentary evidence and goods for which the refund was claimed were those which were not sold but were transferred to the depot/godown of the assessee for onward sale that the duty shown on the invoice.
Also submitted that this was nothing but lack of appreciation of price being used as the basis for valuation and the goods actually being sold or sale price of transaction value and the goods on which refund was claimed were those which were not sold and the same were lying in the depot and therefore no burden or incidence of tax was passed to any other customers.
Anand Kumar, the counsel for the department relied on the decisions made by the lower authorities and contended that the Chartered Accountant Certificate if issued at the request of the appellant cannot be considered as conclusive proof to decide any other issues.
Also submitted that the rejection was on the grounds of unjust enrichment and lack of sufficient evidence. They claimed that they had not varied the price as was prevailing before the abatement percentage having been raised by the notification and therefore the duty in effect was not extra charged from the customers.
The Bench observed that the variance in the rate of abatement just does not happen due to variance of Excise Duty only but also because of variance of other taxes that might have moved in tandem with the rate of abatement.
They observed that the clear that in the Material Requirements planning (MRP) -based assessment, refund of nonclaim of abatement cannot be purely treated as a refund of excise duty paid in excess.
A single-member bench comprising Somesh Arora (Judicial) rejected the appeal filed by the assessee and held that no merit was contained in the appeal.
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