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34 EXCISE LAW TIMES [ Vol. 372

Knit Pvt. Ltd. v. DCIT Bangalore 2016 SCC Online 1536 wherein the Courts have
held that no reassessment can be made once the proceedings are concluded,
merely on the basis of change of opinion.
17. Counsel for the petitioner distinguishing the case of Addison and
Company (supra) relied upon the department while issuing show cause notice,
submitted that the said case is distinguishable on facts. As Hon’ble Apex Court
interpreted clause (e) of Proviso to Section 11B and not Clause (d). As in that case
no CA certificate was presented by assessee evidencing that incidence of duty
lied with assessee, no commercial invoices were issued by applicant to its cus-
tomers on which no excise duty was mentioned. While reading Section 11 B(2), it
is clear that where manufacturer has applied for refund of excise duty, clause (d)
of Proviso to Section 11B(2) states that (i) the duty of excise should have been
paid by the manufacturer and (ii) such incidence of duty must not have been
passed on to any other person. In the present case, it is not in dispute that inci-
dence of excise duty which was initially passed on to dealer was borne by peti-
tioner on issuance of credit notes and discounts on invoices. The Commissioner
on the basis of such credit notes and invoices had held petitioner to have paid
excess excise duty, thus, the law laid down by Apex Court in case of Addison and
Company (supra) was not applicable in the present case.
18. Stress was also laid upon the fact that Civil Appeal No. 8488 of 2009
decided along with case of Addison and Company (supra) where credit notes were
issued regarding return of excise duty paid and CA certificate was produced, the
Apex Court dismissed the appeal of the revenue and allowed refund to assessee.
Relevant Paras 38 and 39 are quoted hereasunder :-
“38. The respondent-Assessee is a 100 per cent Export Oriented Unit
(EOU) manufacturing cotton yarn. The respondent filed an application for
refund of an amount of Rs. 2,00,827/- on 14-8-2002 on the ground that it
had paid excess excise duty @ 18.11 % instead of 9.20 %. The Assessee ini-
tially passed on the duty incidence to its customers. Later the Assessee re-
turned the excess duty amount to its buyers which was evidenced by a cer-
tificate issued by the Chartered Accountant on 2-8-2002. The refund claim
was rejected by the Deputy Commissioner of Central Excise, Kolhapur Di-
vision vide an order dated 24-9-2002 on the ground that the Assessee did
not submit either the credit notes or the Chartered Accountant’s certificate
at the time of filing the refund application. Not satisfied with the genuine-
ness of the documents, the Deputy Commissioner rejected the refund claim.
The Commissioner (Appeals) Central Excise, Pune allowed the appeal filed
by the Assessee by taking note of the certificate issued by the Chartered Ac-
countant and the credit notes dated 29-7-2002. The Appellate Authority ac-
cepted the Assessee’s contentions and held that there was no reason to
doubt the genuineness of the documents produced. The Appellate Authori-
ty allowed the appeal of the Assessee and the said order was confirmed by
the Central Excise and Service Tax Appellate Tribunal vide judgment and
order dated 6-10-2005. The said order of Central Excise and Service Tax
Appellate Tribunal was further confirmed by the High Court of Judicature
at Bombay in Central Excise Appeal No. 100 of 2008 filed by the Revenue.
The Revenue has filed the above Civil Appeal challenging the validity of
the judgment of the High Court in CCE v. Eurotex Industries and Exports Ltd.,
reported in 2008 SCC Online Bom 1578.
39. Except for a factual dispute about the genuineness of the certificate is-
sued by the Chartered Accountant and the credit notes raised by the As-

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