"CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL ALLAHABAD REGIONAL BENCH - COURT NO.I Excise Appeal No.70134 of 2022 (Arising out of Order-in-Appeal No.NOI-EXCUS-002-APP-285-20-21 dated 23/06/2020 passed by Commissioner (Appeals) Central Goods & Services Tax, Noida) M/s Pigeon India Pvt. Ltd., …..Appellant (Plot No.6E, Sector-40-41, Ecotech-1, Noida) VERSUS Commissioner of Customs & Central Excise, Greater Noida ….Respondent (C-56/42, Sector-62, Noida) APPEARANCE: Shri G.P. Banerji, Advocate for the Appellant Shri A.K. Choudhary, Authorised Representative for the Respondent CORAM: FINAL ORDER NO.70562/2025 DATE OF HEARING : 22 April, 2025 DATE OF PRONOUNCEMENT : 12 August, 2025 SANJIV SRIVASTAVA: This appeal is directed against Order-in-Appeal No.NOI- EXCUS-002-APP-285-20-21 dated 23/06/2020 passed by Commissioner (Appeals) Central Goods & Services Tax, Noida. By the impugned order, Commissioner (Appeals) has allowed the appeal filed by the Revenue against Order-in-Original No.174/R/AC/D-I/N-II/17-18 dated 17.10.2017 sanctioning the refund of Rs.17,25,831/- to the appellant. 2.1 Appellant is having registration no.AAFCP2199DEM003 is engaged in manufacture of final products such as Glass Bottle, Nipple, Cotton Swabs, Baby Soap and Bottles. Appellant filed a HON’BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Excise Appeal No.70134 of 2022 2 refund claim of Rs.17,25,830/- claiming that they had paid excess duty at the time of clearance to their final products. 2.2 After verification of the claim made through jurisdictional range officer, it was observed that refund claim was not admissible for following reasons:- “(i) From the scrutiny of invoices issued from the factory to the warehouse, there is nothing on record to show that incidence of Central Excise duty has not been passed on to customers as the goods have been cleared to their own warehouse and from there the goods are sold on the fixed price on the strength of invoice wherein the MRP of the product is also mentioned. (ii) It is also not on record that the excess payment of duty has not affected the MRP of the goods cleared at high rate/excess payment. (iii) Further, the party has not submitted any proof along with the refund claim which can confirm that the duty incidence to the extent paid in excess, has not been borne by them.” 2.3 Show cause notice dated 13.10.2016 was issued proposing as to why their refund claim dated 04.08.2016 for Rs.17,25,830/- filed under Section 11B of Central Excise Act, 1944 should not be rejected. 2.4 The said show cause notice was adjudicated as per the Order-in-Original dated 17.10.2017 referred in para 1 above. 2.5 Aggrieved by the Order-in-Original revenue have filed appeal before Commissioner (Appeals) with the following prayer:- “(i) To set aside the Order-in-Original No. 174/R/AC/ D- I/N-II/ 17-18 dated 17.10.2017 issued by the Assistant Commissioner, GST & Central Excise, Division-I, Gautam Budh Nagar in the case of M/s M/s. Pigeon India Private Limited, Plot No. 6E, Sector-40-41, Ecotech-1, Greater Noida, Gautam Budh Nagar- 201301, sanctioning thereby a refund of duty of Rs. 17,25,831/-; Excise Appeal No.70134 of 2022 3 (ii) To determine and order for recovery of the sanctioned amount of refund claim in terms of Sections 11A of the Central Excise Act, 1944; (iii) To determine and order for crediting the said amount to Welfare Fund in terms of Sections 11B (2) read with Section 12(C) of the Central Excise Act, 1944; and (iv) To pass any other order as deemed fit.” 2.6 The appeal filed by the revenue has been allowed vide Order-in-Appeal dated 14.09.2018 2.7 Aggrieved appellant have filed appeal before this Tribunal and the Tribunal vide Final Order No.71969/2019 dated 06.12.2019 remanded the matter back to Commissioner (Appeals) by holding as follows:- “5. Having considered the submissions from both the sides and on perusal of record, I note that the learned Commissioner (Appeals) did not have the advantage of ruling by Hon‟ble Gujarat High Court in the case of M/s Ashish Metal Rolling Mills (Supra) while deciding the issue. I, therefore, remand the matter to Commissioner (Appeals) to decide the matter afresh taking into consideration submissions including any other submissions by the appellant and relying on the ruling by Hon‟ble Gujarat High Court in the case of M/s Ashish Metal Rolling Mills (Supra). It is made clear that it is an open remand and appellants can rely on any ground they wish to rely.” 2.8 In the remand proceedings vide the impugned order, Commissioner (Appeals) has again allowed the appeal of the revenue. 2.9 Aggrieved appellant have filed this appeal. 3.1 I have heard Shri G.P. Banerji learned Counsel appearing for the appellant and Shri A.K. Choudhary learned Authorised Representative appearing for the revenue. 3.2 Arguing for the appellant learned Counsel submits that-  Impugned order holds that the appellant has failed to prove that there was no unjust enrichment in the sale of Excise Appeal No.70134 of 2022 4 goods from their warehouse during the period from July, 2015 to November, 2015.  The price at which the goods were sold from their warehouse was a pre-agreed one with their buyers and no excise duty was included in the same since it was much less than the MRP, less abatement of 35%.  The Adjudicating Authority has in his order observed that refund claim made by the appellant was pre-audited by the Department before sanction.  Impugned order questioning the veracity of the Chartered Accountant’s certificate against unjust enrichment, he is not only questioning the integrity but has also undermined the position of the independent authority.  In their balance sheet & ledger account which were produced before the Commissioner (Appeals), clearly showed that excess duty paid as amount recoverable from Government.  Reliance is placed upon the following decisions- o Commissioner of Central Excise Vs Aquasub Engineering o CCE Vs Metro Tyres Ltd. 1996 (82) ELT 95 dismissed by the Hon’ble Supreme Court 1997 (94) ELT A51 (SC). o Triveni Chemicals Ltd. Vs Union of India & Anr. Civil Appeal No.5836 of 2005. 3.3 Learned Authorized Representative reiterates the findings recorded in the impugned order. 4.1 I have considered the impugned orders along with the submissions made in appeal and during the course of argument. 4.2 For allowing the appeal of revenue, impugned order records as follows:- “4.1 I have carefully gone through the records of the case, the impugned SCN, OIO, OIA, CESTAT's remand order and submissions made by the respondent during the personal hearing. The Hon'ble CESTAT, in its Final Order No. Excise Appeal No.70134 of 2022 5 A/71969/2019-SM[BR] dated 06/12/2019, remanded the matter to the Commissioner (Appeals) to decide the matter afresh taking into consideration submissions including any other submissions by the party and relying on the ruling by Hon'ble Gujarat High Court in the case of M/s. Ashish Metal Rolling Mills (supra). The Hon'ble CESTAT also made it clear that it is an open remand and appellants can rely on any ground they wish to rely. 4.2 At the time of remanding the matter, the Hon'ble CESTAT has given direction to decide the matter afresh relying on the Hon'ble Gajarat High Court verdict in the case of M/s Ashish Rolling Mills. In the relied upon case of Ashish Rolling Mills, [2014 (305) ELT 510 (Guj.)], Hon'ble Gujarat High Court decided that \"Refund Unjust enrichment Determination of, when invoice by assessee showed composite amount When amount was composite and without duty component, and sale price remained the same before as well as after reclassification, revaluation, etc., same showed that duty burden was not passed on to the buyers Thus, there was no unjust enrichment - Section 11B of Central Excise Act, 1944.\" 4.3 On the other hand, the Ld. Commissioner (Appeals) in Order-in-Appeal No. NOI-EXCUS-002-APP-1451-18-19 dated 14/09/2018, at the time of deciding the case, has relied upon the Hon'ble Supreme Court of India's verdict in the case of CCE, Mumbai-II vs. Allied Photographics India Ltd. [2004 (166) E.L.T. 3 (S.C.)] wherein the Hon'ble Apex Court has laid down the law that -\"Refund claim by buyer - Unjust enrichment Uniformity in price before and after assessment not leads to inevitable conclusion that incidence of duty has not been passed on to buyer as such uniformity may be due to various factors - Costing of goods in hands of distributor, cost element and treatment given to purchases by buyer in his own account were relevant circumstances which authorities below failed to examine Buyer has not further passed on incidence of duty Excise Appeal No.70134 of 2022 6 not proved Refund disallowed Section 11B of Central Excise Act, 1944. 4.4 It is noticed that at the time of deciding the Ashish Rolling Mills case, the Hon'ble Gujarat High Court completely ignored the settled law laid down by the Hon'ble Supreme Court in the landmark judgment of Allied Photographics India Ltd. case. Moreover, relying on the Apex Court's decision (supra) the Jurisdictional High Court of Judicature at Allahabad, in the case of Sanat Products Limited vs. CCE [2015 (323) ELT 682 (All.)] has held that \"Refund -Unjust enrichment - Appellant pleading that they have not recovered duty from customers, price being constant prior and after imposition of duty and hence unjust enrichment not applicable - Apex Court in case of Allied Photographics India Ltd. [2004 (166) E.L.T. 3 (S.C.)] laying down law that uniformity of price, before and after assessment, does not lead to inevitable conclusion that incident of duty not passed on Following aforesaid law settled by Apex Court and in absence of any decision to contrary, appeal of assessee dismissed - Section 11B of Central Excise Act, 1944\" 4.5 It is well settled that in case of conflicting judgments of various High Courts, decision of jurisdictional High Court to be followed. The Hon'ble Gujarat High Court, in the case of Kamakshi Tradexim (India) Pvt. Ltd., vs. UOI [2017 (351) ELT 102 (Guj.)] has opined that \"An interpretation of any provision of law by Supreme Court is the law of land-If authorities duly follow decisions of Supreme Court and jurisdictional High Courts, unnecessary litigation could be obviated and precious judicial time of the Court would not be wasted In another case of CCE vs. Sai Consulting Engineering Pvt. Ltd [2018 (15) GSTL 708 (Guj.)], Hon'ble Gujarat High Court has held that -\"Judicial Discipline Precedent - Different views held different High Courts - Decision of Jurisdictional High Court to be followed.\" Excise Appeal No.70134 of 2022 7 4.6 Accordingly, on application of the settled law pronounced by the Hon'ble Supreme Court in Allied Photographics case (supra) and also by the Jurisdictional High Court of Allahabad in Sanat Products Limited case (supra). I hold that uniformity of price, before and after assessment, does not lead to inevitable conclusion that incident of duty not passed on. At the same time, I also take the liberty in this open remand proceedings not to apply the ratio of the contra decision of the Gujarat High Court in Ashish Rolling Mills case which was suggested in the Hon'ble CESTAT's open remand order dated 16/12/2019 but not made absolute binding in the instant matter. 4.7 The Ld. Commissioner (Appeals) in his Order-in-Appeal dated 14/09/2018 already discussed at length as to why respondent's claim of non-passing of incidence of the excess duty payment to the buyers through the distributors is not acceptable. Practice of raising invoices to the distributors at composite price without showing duty element separately does not anyway lead to any conclusion that the duty incidence was not passed on. Any distributor's/dealer's price arrived at on the basis of MRP unquestionably includes all taxes including CE duty paid on clearance. The respondent also failed to rebut the presumption prescribed in Section 12B of the CE Act 1944 with cogent evidences that every person who has paid the duty of excise on any goods shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods. 4.8 The respondent submitted one Chartered Accountant's certificate which simply states that burden of excise duty has not been passed on by the manufacturer to the buyer or any other person by any kind. Chartered Accountant's certificate must explain as to how incidence of duty not passed on to buyer by showing cost structure, etc., which, in the instant case, is absent. No other evidence produced Excise Appeal No.70134 of 2022 8 before the appellate authority by the respondent showing that the incidence of duty burden has not been passed on to any other person. Chartered Accountant's certificate cannot be a conclusive proof of the fact that duty incidence has not been passed on. Owing to overwhelming balance of proof in favour of the department against respondent's claim of non-passing of duty incidence to any person, I find that such a nonspecific/generic certificate issued by Chartered Accountant, cannot, in any way, come to rescue the respondent's claim. 4.9 Under the facts and circumstances of the present case read with ratio of the judicial pronouncements of the Hon'ble Apex Court and Jurisdictional High Court of Allahabad (supra), 1 again hold that the instant claim of refund filed by the respondent is hit by doctrine of unjust enrichment and the original authority has erroneously sanctioned and paid the refund amount to the respondent, which is liable for recovery from him and credit to the 'Consumer Welfare Fund' in terms of Section 11B(2) of the Central Excise Act 1944.” 4.3 The facts as recorded so that the appellant has paid the Central Excise duty at the time of the clearance of these goods on the basis of self assessment made by them. The refund was filed, claiming that they have paid excess duty at the time of clearance and the same should be refunded to them. The refund claim was filed in the year 2017 and the order sanctioning the refund claim was also passed in the year 2017. Even the order of First Appellate Authority was passed on 14.09.2018 and the matter was remanded by the Tribunal by order dated 6 December, 2019. I note that in the meantime the matter with regards to admissibility of refund claim made questioning the self assessment was decided by the judgments of Hon’ble Supreme Court in the case of M/s ITC Ltd. 2019 (368) ELT 216 have held as follows:- Excise Appeal No.70134 of 2022 9 “41. It is apparent from provisions of refund that it is more or less in the nature of execution proceedings. It is not open to the authority which processes the refund to make a fresh assessment on merits and to correct assessment on the basis of mistake or otherwise. 42. It was contended that no appeal lies against the order of self-assessment. The provisions of Section 128 deal with appeals to the Commissioner (Appeals). Any person aggrieved by any decision or order may appeal to the Commissioner (Appeals) within 60 days. There is a provision for condonation of delay for another 30 days. The provisions of Section 128 are extracted hereunder : “128. Appeals to [Commissioner (Appeals)]. — (1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a [Principal Commissioner of Customs or Commissioner of Customs] may appeal to the [Commissioner (Appeals)] [within sixty days] from the date of the communication to him of such decision or order : [Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.] [(1A) The Commissioner (Appeals) may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing : Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.] Excise Appeal No.70134 of 2022 10 (2) Every appeal under this section shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf.” 43. As the order of self-assessment is nonetheless an assessment order passed under the Act, obviously it would be appealable by any person aggrieved thereby. The expression „Any person‟ is of wider amplitude. The revenue, as well as assessee, can also prefer an appeal aggrieved by an order of assessment. It is not only the order of re-assessment which is appealable but the provisions of Section 128 make appealable any decision or order under the Act including that of self-assessment. The order of self-assessment is an order of assessment as per Section 2(2), as such, it is appealable in case any person is aggrieved by it. There is a specific provision made in Section 17 to pass a reasoned/speaking order in the situation in case on verification, self-assessment is not found to be satisfactory, an order of re-assessment has to be passed under Section 17(4). Section 128 has not provided for an appeal against a speaking order but against “any order” which is of wide amplitude. The reasoning employed by the High Court is that since there is no lis, no speaking order is passed, as such an appeal would not lie, is not sustainable in law, is contrary to what has been held by this Court in Escorts (supra). 44. The provisions under Section 27 cannot be invoked in the absence of amendment or modification having been made in the bill of entry on the basis of which self- assessment has been made. In other words, the order of self-assessment is required to be followed unless modified before the claim for refund is entertained under Section 27. The refund proceedings are in the nature of execution for refunding amount. It is not assessment or re- assessment proceedings at all. Apart from that, there are other conditions which are to be satisfied for claiming Excise Appeal No.70134 of 2022 11 exemption, as provided in the exemption notification. Existence of those exigencies is also to be proved which cannot be adjudicated within the scope of provisions as to refund. While processing a refund application, re- assessment is not permitted nor conditions of exemption can be adjudicated. Re-assessment is permitted only under Section 17(3)(4) and (5) of the amended provisions. Similar was the position prior to the amendment. It will virtually amount to an order of assessment or re- assessment in case the Assistant Commissioner or Deputy Commissioner of Customs while dealing with refund application is permitted to adjudicate upon the entire issue which cannot be done in the ken of the refund provisions under Section 27. In Hero Cycles Ltd. v. Union of India - 2009 (240) E.L.T. 490 (Bom.) though the High Court interfered to direct the entertainment of refund application of the duty paid under the mistake of law. However, it was observed that amendment to the original order of assessment is necessary as the relief for a refund of claim is not available as held by this Court in Priya Blue Industries Ltd. (supra). 45. Reliance was also placed on a decision of Rajasthan High Court with respect to service tax in Central Office Mewar Palace Org. v. Union of India - 2008 (12) S.T.R. 545 (Raj.). In view of the aforesaid discussion, we are not inclined to accept the reasoning adopted by the High Court, that too is also not under the provisions of the Customs Act. 46. The decision in Intex Technologies (India) Ltd. v. Union of India has followed Micromax (supra). The reasoning employed by the High Courts of Delhi and Madras does not appear to be sound. The scope of the provisions of refund under Section 27 cannot be enlarged. It has to be read with the provisions of Sections 17, 18, 28 and 128. Excise Appeal No.70134 of 2022 12 47. When we consider the overall effect of the provisions prior to amendment and post-amendment under Finance Act, 2011, we are of the opinion that the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the order of self-assessment and reassess the duty for making refund; and in case any person is aggrieved by any order which would include self-assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Act. 48. Resultantly, we find that the order (s) passed by Customs, Excise, and Service Tax Appellate Tribunal is to be upheld and that passed by the High Courts of Delhi and Madras to the contrary, deserves to be and are hereby set aside. We order accordingly. We hold that the applications for refund were not maintainable. The appeals are accordingly disposed of. Parties to bear their own costs as incurred.” 4.4 In my view the subsequent judgment of Hon’ble Supreme Court laid down the law of the land needs to be followed and being a question of law can be taken at any time in the proceedings. Article 141 of the Constitution of India reads as follows: “141. Law declared by Supreme Court to be binding on all courts.— The law declared by the Supreme Court shall be binding on all courts within the territory of India.” 4.5 In view of the above decision and the Article 141 of the Constitution, I have serious doubts with regards to maintainability of refund claim, when no appeal was filed by the appellant challenging the self assessment made by them before the appellate authority. Excise Appeal No.70134 of 2022 13 4.6 The refund claim has been disallowed by the Commissioner (Appeals) on the ground of unjust enrichment after considering the decision of M/s Ashish Rolling Mills 2014 (305) ELT 510 (Guj) as is clearly recorded in the impugned order in para-4.2. While he has recorded the reasons for not deciding the matter in accordance with the said decision of Hon’ble Gujarat High Court he noted the decision of Hon’ble Supreme Court in the case of Allied Photographics India Ltd. 2004 (166) ELT 3 (SC) and observed that Hon’ble Gujarat High Court has failed to take note of the said decision and the decision of Hon’ble Allahabad High Court in the case of Sanat Products Ltd. 2015 (323) ELT 682 (All) wherein the said decision of Hon’ble Supreme Court have been relied upon to rule against the admissibility of refund claim with the grounds of unjust enrichment. 4.7 Thus he chooses to follow the decision of Hon’ble Jurisdictional High Court than the decision of Hon’ble Gujarat High Court. He also relied upon the decision of Hon’ble Gujarat High Court in the case of M/s Sai Consulting Engineering Pvt. Ltd. 2018 (15) GSTL 708 (Guj) wherein following has been held:- “4. The Court noticed that similar view was expressed by Punjab and Haryana High Court in case of Commissioner of Central Excise v. First Flight Courier Limited reported in 2011 (22) S.T.R. 622 (P&H) and by Karnataka High Court in case of Commissioner of Service Tax, Bangalore v. Motor World reported in 2012 (27) S.T.R. 225 (Kar.). 5. Learned Counsel for the department however brought to our notice judgment of Kerala High Court in case of Asstt. CCE & Ors. v. Krishna Poduval & Ors, (W.A. Nos 715 and 717 of 2005, judgment dated 20-10-2005) [2006 (1) S.T.R. 185 (Ker.)]. However when decision of this Court is already rendered, we would be bound by such decision.” Excise Appeal No.70134 of 2022 14 4.8 It is noted that Commissioner (Appeals) has undermined the authority of the notified Chartered Account, he found that Chartered Accountant’s Certificate not meeting the requirements of the law in terms of showing that portion of duty has not been based on the any other portion, he rejected the same. He further found that it is also settled law that the issue of unjust enrichment is to be decided by the concern authorities as per the provisions of statute the Chartered Accountant certificate can be evidence but not a decision on the issue of unjust enrichment. If the Chartered Accountant certificate made rejected by the concern authority, if not found adequate enough to establish that portion of duty has not been based on. In case of Emami Agrotech Ltd. [2023 (3) CENTAX 108 (Cal)] Hon'ble Kolkata High Court observed as follows: 15. In Commissioner of Customs (Exports) Custom House v. BPL Ltd. 2010 SCC 3972 the substantial question of law framed for consideration was whether Chartered Accountant certificate alone can be accepted as evidence to rule out \"unjust enrichment\" without any corroborative evidence such as balance sheet, ledger accounts, sales invoices prior to after import etc. or not? It was held that certificate issued by the Chartered Accountant is merely a piece of evidence acknowledging certain facts, the authorities cannot merely act upon the certificate and if such an interpretation is given, then there is nothing for the authorities to decide the issue of refund. Thus, it was held that the tribunal had committed an error in merely relying upon the certificate produced by the assessee without taking into consideration of the fact that no evidence has been produced for considering the claim of refund. 4.9 In case of Apnacar.com Pvt. Ltd. [2021 (55) G.S.T.L. 166 (Tri. - Bang.)] Bangalore bench in respect of the Chartered Accountant Certificate has observed as follows: 5. .......Further, I also find that the Chartered Accountant certificate furnished by the appellant is given in 2019 while Excise Appeal No.70134 of 2022 15 the payments were made in the year 2008. The Chartered Accountant has specified that the said certificate was issued at the „request of the appellant‟. Hence the certificate is only a self-serving document which cannot be considered as a conclusive proof to decide the issue. Law provides permissible documentary evidences that are accepted by the sanctioning authority and apparently, no effort seems to have been made by the appellant in this regard....\" 4.10 I also perused the copy of the balance sheet and the ledger produced by the appellant during the course of argument and also the Chartered Accountant Certificate produced by the appellant. Copy of the balance sheet and the ledger is reproduced as follows:- Excise Appeal No.70134 of 2022 16 4.11 Though in these documents certain amounts is under the category of short term loans and advances is balance with government authorities but nothing is indicated that the burden of the central excise duty paid at the time of clearance of the goods has not been based on to their customers. The appellant has declared MRP in respect of these goods which would have been included all the duties and taxes paid at the time of sale of the goods to the final consumers. Even if the goods were or were not to be assessed under Section 4A of Central Excise Act, the duty paid was passed on to the buyer of the goods. The presumption that incidence of the duty has been passed on to the buyer of the goods is statutory presumption as per Section 12A and 12 of the Central Excise Act, 1994. The said sections are reproduced below: “12A. Price of goods to indicate the amount of duty paid thereon.— Notwithstanding anything contained in this Act or any other law for the time being in force, every person who is liable to pay duty of excise on any goods shall, at the time of clearance of the goods, prominently indicate in all the documents relating to assessment, sales invoice, and other like documents, the amount of such duty which will form part of the price at which such goods are to be sold. 12B. Presumption that the incidence of duty has been passed on to the buyer.— Excise Appeal No.70134 of 2022 17 Every person who has paid the duty of excise on any goods under this Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods.” 4.12 In the case of Shoppers Stop Ltd. {2018 (8) G.S.T.L. 47 (Mad.)], Hon’ble Madras High Court has observed as follows: 8. Given the aforesaid facts, what is required to be ascertained by us, is, whether the statutory presumption obtaining against the assessee that it had passed on the burden of duty stood rebutted. 8.1 According to us, the Chartered Accountant‟s certificate, the Balance Sheet and the ledger account, by themselves, did not disturb the statutory presumption, as these are not primary documents, which would capture the transactions that the assessee may have entered into with its customers. The primary evidence would be the sales invoice that would get generated every time a transaction was entered into between the assessee and its customers. 8.2 It is well-settled that the transaction adverted to in a ledger or in a Balance Sheet can only, at best, be a secondary evidence. The primary evidence would be the underlying documents, such as Bills, Sales Invoices, etc. In so far as the entries in the books of accounts and ledgers are concerned, they do not get proved by themselves even those entries require proof. See M/s. Superior Crafts and Others v. Sudhir Gupta - MANU/DE/4038/2013; Chandradhar Goswami and Others v. The Gauhati Bank Ltd. - AIR 1967 S.C. 1058; and Central Bureau of Investigation v. V.C. Shukla and Others - AIR 1998 S.C. 1406. 8.3 Before one could say that the assessee had reached a stage that the statutory presumption obtaining against it in terms of Section 28D stood rebutted, it would have to place on record, the necessary primary documents, based on which, entries were made in the ledger, and, the Excise Appeal No.70134 of 2022 18 Balance Sheet was drawn up. If, the assessee had placed on record, the primary documents/evidence, then perhaps, one could have said that the onus of proof had shifted on, to the Revenue, and if, the Revenue, thereafter, proceed to deny the refund, it would have to place on record the relevant documentary evidence to demonstrate that the incidence of duty had passed on to the customers of the assessee. 8.4 Furthermore, we notice that the certificate of the concerned Chartered Accountant‟s firm only states that a sum of Rs. 18,91,216.47 is receivable by the appellant from the Customs authorities. It further states that based on the explanation given to them, they believe that the said sum had not been collected by the assessee, from its customers. We must indicate that in the opening paragraph of the Chartered Accountant‟s certificate, seems to indicate that the books of accounts and the relevant supporting documents have been verified. If, that was the position, then, we see no reason why the assessee could not produce the relevant invoices, i.e., supporting documents before the Tribunal, despite opportunity having been given, in that behalf. 9. In so far as the judgment of the Division Bench of the Delhi High Court in Hero Motocorp Limited v. Commissioner of Customs (Import and General) - 2014 (302) E.L.T. 501, is concerned, according to us, the said judgment does not help the cause of the assessee. A careful reading of the said judgment would show that the assessee in that case had placed on record, inter alia, apart from the Balance Sheet and the Chartered Accountant‟s certificate, self-attested invoice/packing list/bill of entry. As a matter of fact, the invoices placed on record, pertained both to pre and post import period. (See paragraphs 4 and 17 of the judgment). Therefore, the said judgment, instead of helping the cause of the assessee, would advance the case of the Revenue. Excise Appeal No.70134 of 2022 19 10. Furthermore, a Division Bench of this Court in Commissioner of Customs (Exports), Chennai v. BPL Limited - 2010 (259) E.L.T. 526 (Mad.), has taken a view similar to the one, that we have articulated above. 4.13 In case of SRF Ltd. [2021 (377) E.L.T. 737 (Mad.)], Hon'ble Madras High Court observed as follows: 9. We have closely and carefully examined the facts in the case of Addison & Co. Ltd. Before we go into the operative portion of the judgment, we need to take note of the facts in one of the appeals against a judgment of this Court, namely, Civil Appeal No. 7906 of 2002. The respondent/assessee in the said appeal was a manufacturer of cutting tools, they filed a refund claim and a supplemental refund claim towards excise duty paid on various taxes and discounts such as turnover tax, surcharge, additional sales discount, transitory insurance, excise discount, additional discount and turnover discount. The Department opined that the refund towards turnover discount and additional discount was to be rejected as the said assessee was not eligible for deduction from the wholesale price for determination of value under Section 4 of the Act and a show cause notice was issued as to why the refund claim involving turnover discount and additional discount should not be rejected. After hearing the said assessee the claim was rejected in respect of turnover discount and additional discount on the ground that the quantum of discount become known only at the year end. 10. The said order was reversed by the first appellate authority who held that the assessee was entitled for refund. As per the amendment to Section 11B of the Act, an application filed for refund prior to the Central Excise and Customs Laws (Amendment) Act, 1991 shall deemed to have been made under the Amendment Act and considered accordingly. The Assistant Collector of Excise Excise Appeal No.70134 of 2022 20 issued a show cause notice directing the assessee to produce evidence in support of their refund claim. It was mentioned in the said notice that the burden of proof to show that full incidence of duty has not been passed on to the buyers is on the assessee as per Section 12B of the Act. The Assistant Collector held that the assessee is entitled for refund. The first appellate authority rejected the appeal filed by the Revenue. The Revenue‟s appeal before the Tribunal was allowed holding that the assessee would be entitled to grant of refund only if he had not passed on duty burden to his buyers. It was also held that the buyer in turn would be entitled to refund only if he has not passed on the incidence of duty to any other person. Further the Tribunal held that the event which gives rise to cause of action for refund is payment of duty made in respect of goods cleared from the factory and once the duty burden had been passed on to the buyer at the time of clearance, issuance of credit note at a later point of time would not entitle the assessee to claim any refund. The Tribunal also held that burden of duty is normally passed by the manufacturer to the dealer and to the ultimate consumer. 11. The said assessee filed an application for reference to this Court, Madras and one of the questions was whether the Tribunal after finding the duty element on the discount to its dealers, the applicant had satisfied the requirements of proviso (d) to Section 11B(2) of the Act was entitled to be paid the amount claimed as refund. The second question being whether the Tribunal after finding that the burden of duty was passed on by the applicant to its various dealers by issue of credit notes was right in concluding that the ingredients of Section 11B were not satisfied. This Court by judgment dated 23-11-2000 [2001 (129) E.L.T. 44 (Mad.)] answered the reference in favour of the said assessee on the ground that the refund towards Excise Appeal No.70134 of 2022 21 deduction of turnover discount cannot be denied on the ground that there was no evidence to show who is the ultimate consumer of the product and as to whether the ultimate consumer had borne the burden of duty. Further, it held that Section 11B of the Act cannot be construed as having reference to the ultimate consumer and it would be sufficient for the claimant to show that he did not pass on the burden of duty to any other person. 12. Challenging the legality and validity of the judgment of this Court, Civil Appeal No. 7906 of 2002 was filed before the Hon‟ble Supreme Court. On behalf of the assessee, it was contended before the Hon‟ble Supreme Court that turnover discount is an admissible deduction, the scheme of turnover discount was known to the buyer even at the time of sale, discount was given on the basis of the turnover of sales made by the buyer and the credit notes issued to the buyer contains the discounts and the duty element. It was submitted that the incidence of duty was originally passed on to the buyer. Further it was contended that trade discounts should not be disallowed only because they are not payable at the time of each invoice or deducted from the invoice price. The Department contended that the verification to be done by the Department to enquire about the ultimate buyer who has actually paid the duty is not a futile exercise and the refund can be granted only to the person who has paid the duty and not to anyone else and if the ultimate consumer cannot be identified, the amount would be retained in the Fund and utilized for the benefit of consumers. 13. The question that arose for consideration before the Hon‟ble Supreme Court was whether the assessee (Addison & Co. Ltd.) is entitled for a refund and whether there would be unjust enrichment if the said refund was allowed. The Hon‟ble Supreme Court noted that the Special Bench of CEGAT, New Delhi held that turnover discount Excise Appeal No.70134 of 2022 22 was not an admissible abatement on the ground that the quantum of discount was not known prior to the removal of goods and in an appeal filed by the assessee before the Hon‟ble Supreme Court by judgment dated 11-3-1997, it was held that turnover discount is an admissible deduction. The Department contended that any credit note that was raised post clearance will not be taken into account for the purpose of refund by the Department. This submission was not accepted by the Hon‟ble Supreme Court by referring to the decision in Union of India v. Bombay Tyre International Private Limited [1984 (17) E.L.T. 329 (S.C.)], wherein it was held that trade discounts shall not be allowed only because they are not payable at the time of each invoice or deducted from the invoice price. Thus it was held that the assessee is entitled for filing a claim for refund on the basis of the credit notes raised by him towards trade discounts. Thus the issue in Addison & Co. Limited was as to whether the claim for refund on the basis of credit notes raised by the assessee towards trade discounts was admissible or not. The factual position was entirely different to that of the case on hand. The Hon‟ble Supreme Court then proceeded to consider the case of the assessee therein who had admitted that the incidence of duty was originally passed on to the buyer and there is no material on record to show that the buyer to whom the incidence of duty was passed on by the assessee did not pass it on to any other person and that there is a statutory presumption under Section 12B of the Act that the duty has been passed on to the ultimate consumer. Further it was held that it is clear from the facts that the duty which was originally paid by the assessee was passed on, refund claim by the assessee is for the amount which is part of the excise duty paid earlier and passed on and the assessee who did not bear the burden of duty though entitled to claim deduction is not entitled for refund as he would be unjustly enriched. The Hon‟ble Supreme Court Excise Appeal No.70134 of 2022 23 referred to paragraph 108 of the decision in the case of Mafatlal Industries Limited and Others v. Union of India and Others [1997 (89) E.L.T. 247 (S.C.)]. The following paragraphs of the judgment would be relevant : “19. The sine qua non for a claim for refund as contemplated in Section 11B of the Act is that the claimant has to establish that the amount of duty of excise in relation to which such refund is claimed was paid by him and that the incidence of such duty has not been passed on by him to any other person. Section 11B(2) provides that, in case it is found that a part of duty of excise paid is refundable, the amount shall be credited to the fund. Section 2(ee) defines Fund to mean the Consumer Welfare Fund established under Section 12C. There is a proviso to Section 11B(2) which postulates that the amount of excise duty which is refundable may be paid to the applicant instead of being credited to the fund, if such amount is relatable to the duty of excise paid by the manufacturer and he had not passed on the incidence of such duty to any other person. Clause (e) to proviso of Section 11B(2) also enables the buyer to receive the refund if he had borne the duty of excise, provided he did not pass on the incidence of such duty to any other person. There is a third category of a class of applicants who may be specified by the Central Government by a notification in the official gazette who are also entitled for refund of the duty of excise. A plain reading of Clauses (d), (e) and (f) of the proviso to Section 11B(2) shows that refund to be made to an applicant should be relatable only to the duty of excise paid by the three categories of persons mentioned therein i.e. the manufacturer, the buyer and a class of applicants notified by the Central Government. Clause (e) Excise Appeal No.70134 of 2022 24 refers to the buyer which is not restricted to the first buyer from the manufacturer. The buyer mentioned in the above Clause can be a buyer downstream as well. While dealing with the absence of a provision for refund to the consumer in the rules this Court in Mafatlal Industries v. Union of India (supra) held as follows :- “98. A major attack is mounted by the Learned Counsel for petitioners-appellants on Section 11B and its allied provisions on the ground that real purpose behind them was not to benefit the consumers by refusing refund to manufacturers (on the ground of passing on the burden) but only to enable the Government to retain the illegally collected taxes. It is suggested that the creation of the Consumer Welfare Fund is a mere pretence and not an honest exercise. By reading the Rules framed under Section 12D, it is pointed out, even a consumer, who has really borne the burden of tax and is in a position to establish that fact, is yet not entitled to apply for refund of the duty since the Rules do not provide for such a situation. The Rules contemplate only grants being made to Consumer Welfare Societies. Even in the matter of making grants, it is submitted, the Rules are so framed as to make it highly difficult for any consumer organisation to get the grant. There is no provision in the Act, Shri Nariman submitted, to locate the person really entitled to refund and to make over the money to him. “We expect a sensitive Government not to bluff but to hand back the amounts to those entitled thereto”, intoned Shri Nariman. It is a colourable device - Excise Appeal No.70134 of 2022 25 declaimed Shri Sorabjee - “a dirty trick” and “a shabby thing”. The reply of Shri Parasaran to this criticism runs thus : It ill-becomes the manufacturers/Assessees to espouse the cause of consumers, when all the while they had been making a killing at their expense. No consumers‟ organisation had come forward to voice any grievance against the said provisions. Clause (e) of the proviso to sub- section (2) of Section 11B does provide for the buyer of the goods, to whom the burden of duty has been passed on, to apply for refund of duty to him, provided that he has not in his turn passed on the duty to others. It is, therefore, not correct to suggest that the Act does not provide for refund of duty to the person who has actually borne the burden. There is no vice in the relevant provisions of the Act. Rules cannot be relied upon to impugn the validity of an enactment, which must stand or fall on its own strength. The defect in the Rules, assuming that there is any, can always be corrected if the experience warrants it. The Court too may indicate the modifications needed in the Rules. The Government is always prepared to make the appropriate changes in the Rules since it views the process as a “trial and error” method - says Shri Parasaran”. 20. There was a further submission which was considered in the said judgment about the convenience/difficulty for the ultimate consumer to make applications for refund. In that connection it was held as follows :- Excise Appeal No.70134 of 2022 26 “99. We agree with Shri Parasaran that so far as the provisions of the Act go, they are unexceptionable. Section 12C which creates the Consumer Welfare Fund and Section 12D which provides for making the Rules specifying the manner in which the money credited to the Fund shall be utilised cannot be faulted on any ground. Now, coming to the Rules, it is true that these Rules by themselves do not contemplate refund of any amount credited to the Fund to the consumers who may have borne the burden; the Rules only provide for “grants” being made in favour of consumer organisations for being spent on welfare of consumers. But, this is perhaps for the reason that clause (e) of the proviso to sub-section (2) of Section 11B does provide for the purchaser of goods applying for and obtaining the refund where he can satisfy that the burden of the duty has been borne by him alone. Such a person can apply within six months of his purchase as provided in clause (e) of Explanation B appended to Section 11B. It is, therefore, not correct to contend that the impugned provisions do not provide for refunding the tax collected contrary to law to the person really entitled thereto. A practical difficulty is pointed out in this behalf by the Learned Counsel for appellants-petitioners : It is pointed out that the manufacturer would have paid the duty at the place of “removal” or “clearance” of the said goods but the sale may have taken place elsewhere; if the purchaser wants to apply for refund - it is submitted - he has to go to the place where the duty has been paid by the manufacturer and apply there. It is Excise Appeal No.70134 of 2022 27 also pointed out that purchasers may be spread all over India and it is not convenient or practicable for all of them to go to the place of “removal” of goods and apply for refund. True it is that there is this practical inconvenience but it must also be remembered that such claims will be filed only by purchasers of high- priced goods where the duty component is large and not by all and sundry/small purchasers. This practical inconvenience or hardship, as it is called, cannot be a ground for holding that the provisions introduced by the 1991 (Amendment) Act are a “device” or a “ruse” to retain the taxes collected illegally and to invalidate them on that ground - assuming that such an argument is permissible in the case of a taxing enactment made by Parliament. (See R.K. Garg [(1981) 4 SCC 675 : 1982 SCC (Tax) 30 : AIR 1981 SC 2138] and other decisions cited in paras 87 and 88.)” 21. That a consumer can make an application for refund is clear from paras 98 and 99 of the judgment of this Court in Mafatlal Industries (supra). We are bound by the said findings of a Larger Bench of this Court. The word „buyer‟ in Clause (e) to proviso to Section 11B(2) of the Act cannot be restricted to the first buyer from the manufacturer. Another submission which remains to be considered is the requirement of verification to be done for the purpose of finding out who ultimately borne the burden of excise duty. It might be difficult to identify who had actually borne the burden but such verification would definitely assist the Revenue in finding out whether the manufacturer or buyer who makes an application for refund are being unjustly Excise Appeal No.70134 of 2022 28 enriched. If it is not possible to identify the person/persons who have borne the duty, the amount of excise duty collected in excess will remain in the fund which will be utilized for the benefit of the consumers as provided in Section 12D.” Thus the appeal filed by the Revenue was allowed and the judgment of this Court was set aside. 14. Ms. L. Maithili, Learned Counsel for the petitioner referred to paragraph 35 of the judgment which deals with Civil Appeal No. 8488 of 2009 arising out of judgment of the High Court of Bombay. To be noted that the said case also pertains to a case of trade discount and the dispute was with regard to genuineness of the documents which was not initially produced at the time of filing the refund claim but subsequently produced and the genuineness having been satisfied, the appeal filed by the Revenue was dismissed. 15. In our considered view the said decision can be of no assistance to the case of the assessee before us as the fact situation was entirely different. Similarly, the case in TVS Electronics Limited also pertain to the discounts offered by the assessee which is passed on to the distributors [buyers] by virtue of post sales credit notes. The Division Bench by referring to paragraph 14 of the judgment in Addison & Co. Ltd., wherein it was held that the assessee is entitled for filing a claim for refund on the basis of credit notes raised by them towards discounts, remanded the matter to decide the aspect of unjust enrichment. On facts, the said decision cannot be applied to the assessee‟s case. 16. In Daimler Chrysler India Pvt. Ltd., the Court found that apart from noting the decisions of this Court and the High Court of Andhra Pradesh remanded the matter to verify the documents. We find in the said decision that the Excise Appeal No.70134 of 2022 29 appeal was restored to the file of the Tribunal for examining the issues highlighted in the judgment, one of which was whether the dealer has been found to be recovering the amounts or having given credit to the buyer, then whether raising of credit notes would negate the presumption raised in Section 12B of the Act or not. It was made clear that the Court was not expressing any opinion on the issue and directed the Tribunal to take a decision. We are of the view that the decision may not render assistance to the case of the assessee. 17. The closest decision to the facts of the case on hand is the decision in Chennai Petroleum Corporation Limited, wherein the appellant assessee raised an invoice for supply of Raw Naphtha which is a dutiable product and the invoice was raised by the said appellant assessee on its marketing company M/s. IOCL who in turn raised invoice on the purchaser, M/s. PPN who in turn manufactured power by use of Raw Naphtha and other raw materials. It was held that if at all duty can be said to have been collected in excess on account of over valuation of the supplies, it is the consumer of the said raw materials/Raw Naphtha, namely, M/s. PPN who could have been claimed refund of excise duty as per settled legal position and merely because M/s. IOCL issued credit note to the buyer, namely, M/s. PPN, it cannot be said that the incidence of excise duty was not passed on to the purchaser, M/s. PPN. It was further held that once the incidence of excise duty has been passed on, whether it further passed on to the ultimate buyer or consumer or not is not a relevant question and the appellant assessee therein cannot be said to have borne any incidence of excise duty illegally levied and therefore they have no right to claim any refund. The Court also referred to the decision of the Constitutional Bench in Mafatlal Industries Limited which was followed in Addison & Co. Ltd. Excise Appeal No.70134 of 2022 30 18. Thus the decision in Addison & Co. Ltd., particularly the ratio laid down in paragraphs 19 to 21 of the judgment is a clear answer to the assessee‟s case. Admittedly the assessee at the time of issuance of invoices/gate passes have collected the additional duty of excise from its customers/buyers. Much after that they filed a refund claim and produced the copies of credit notes stating that the duty collected from the buyers had been refunded to the assessee and hence they are entitled for claiming refund under Section 11B of the Act. Thus, it is not disputed by the assessee that the amount of duty of excise had been passed on to its customers. As rightly argued before us by Mr. A.P. Srinivas, the verification to be done by the Department, to enquire about the ultimate buyer who has actually paid the duty is not a futile exercise as refund can be granted only to a person who has paid the duty and not to anyone else and if the ultimate consumer cannot be identified, the amount would be retained in the fund. This is more so because the word “buyer” in clause (e) to proviso to Section 11B(2) of the Act cannot be restricted to the first buyer from the manufacturer. The basis for the claim of refund was on account of the fact that on or after 31-5-1990 the rate of duty was NIL. For the period between 31-5-1990 and 6-7-1990 the assessee paid additional duty of excise and had passed on the incidence of duty to its customers at the time of issue invoices/gate passes. Therefore, the subsequent issuance of credit note is of little avail as the incidence for the excise duty is deemed to have been passed on by the assessee to its buyer and therefore not entitled for filing an application for refund under Section 11B of the Act merely because they subsequently came to know that the rate of duty was NIL and credit notes are said to have been issued to the buyer. Excise Appeal No.70134 of 2022 31 4.14 The decisions relied upon by the Appellant in the appeal are not specific to the issue under consideration and are distinguishable. 4.15 In view of the above decisions and findings, I do not find any merits in this appeal. 5.1 Appeal is dismissed. (Order pronounced in open court on-12 August, 2025) (SANJIV SRIVASTAVA) MEMBER (TECHNICAL) akp "