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2020 ] HONDA SIEL POWER PRODUCTS v. UNION OF INDIA 35

sessee 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.”
19. In the present case, CA certificate dated 15-6-2015 was submitted to
substantiate that burden of duty initially passed on to dealers/distributors was
assumed back by petitioner after credit notes were issued.
20. As to the maintainability of writ petition, Sri Gulati submitted that
the Apex Court in State of Punjab v. Bhatinda District Cooperative Milk Producers
Union (2007) 11 SCC 363 = 2007 (217) E.L.T. 325 (S.C.) had held that question of
limitation being a question of jurisdiction, a writ petition under Article 226 of the
Constitution is maintainable. He also relied upon decision of this Court in case of
Samsung India Electronics Pvt. Ltd. (supra) wherein it has been held that writ peti-
tion is maintainable when reassessment proceedings are initiated on the basis of
mere change of opinion.
21. It was lastly contended that no burden of excise duty was passed in
respect of cash discount and mega discount is concerned to the deal-
ers/distributors. Perusal of invoices issued by petitioner reveals that in case of
cash discount and mega discount, the discounts are passed on to dealers through
invoices issued at the time of sale of products, thus, amount paid by dealers to
petitioner is the discounted prices and incidence of excise duty on such discount
remained with petitioner alone and is never shifted to dealer.
22. Per contra, Sri B.K. Singh Raghuvanshi, Learned Counsel appearing
for the department submitted that order impugned dated 30-11-2017 is appeala-
ble before Commissioner (Appeals) in terms of Section 35 of the Act, as there is
an alternative remedy available to the petitioner. He has relied upon a decision
of the Apex Court in case of Union of India v. Rubber Products Ltd. 2015 (326)
E.L.T. 232 (SC).
23. He further submitted that excise duty is subsumed in the prices and
not charged separately from customer, when price charged from customer in-
cludes excise duty and discounts are provided to the dealers by way of credit
notes, then it is not clear how the duty element included in the discount granted
by way of credit note is passed on to customers after sale.
24. It was also contended that Section 11A of the Act, provides for re-
covery of excise duty refunded erroneously. The show cause notice was issued in
the background of judgment of Apex Court in the case of Addison and Company
(supra). According to him, there is no pre-condition under Act, to review of the
refund order before initiating recovery proceedings, as Act, nowhere bars such
recovery proceedings without review of refund order.
25. Sri Raghuvanshi also relied upon judgment of Apex Court in case
of Jain Shudh Vanaspati (supra) wherein it has been held that show cause notice
issued under Section 28 of Customs Act, could be issued for demand of duty
without revising order passed under Section 47 in terms of Section 130 of Cus-
toms Act. Reliance has also been placed upon a decision of Apex Court in case of
CCE Bhuvenshwar v. Re-Rolling Mills (1997) 94 E.L.T. 8 (SC) wherein it has been
held that Section 11A was parimateria with Section 28 of Customs Act.
26. Learned Counsel for department laid stress that show cause notice

EXCISE LAW TIMES  1st April 2020  197