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2016 (2) TMI 586 - AT - Central ExciseRejection of refund claim on the point of unjust enrichment - Held that:- It is for the first time that when the appeal was filed before Commissioner (Appeals) against the rejection of the refund claim vide adjudication order passed in de novo proceedings that Commissioner (Appeals) examined the refund claim on merits. Though as find acceptance in the reasononings of Commissioner (Appeals) that when the quantitative discounts were not known at the time of removal of the goods and the duty was paid on the higher assessable value, subsequent reduction of the assessable value may not be in accordance with law, especially when the assessment was not provisional. Further I find force in the plea of the learned advocate that the issue on merits was never the subject matter of the proceedings and introduction of the same, for the first time, by Commissioner (Appeals), while deciding the remand proceedings, cannot be appreciated. Taking up the matter on merits, which were not subject matter of the show-cause notice, amounts to going beyond the show-cause notice. Not only that when the matter was addressed by the Tribunal for the first time, Revenue never raised the issue that the refund claim is not admissible even otherwise. The matter was argued only on the issue of unjust enrichment. As such, fully agree that rejection of refund claim on merits by Commissioner (Appeals) is not proper and legal. It is not disputed that the appellant has given quantitative discounts to their distributors and have issued credit notes to them. The distributors are the buyers and for the purpose of unjust enrichment, they have to be considered so. There is no concept of not passing on the duty to the ultimate consumer and as long as the buyers had been passed on the benefit of reduction in duty, the same would satisfy the principles of unjust enrichment. Accordingly hold that the appellant is entitled to the refund of duty. - Decided in favour of assessee
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