TMI Blog2006 (3) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed the refund claims. But on an appeal filed by the Department, the Commissioner (Appeals), under order dated 9-3-2004, set aside the order of the Deputy Commissioner holding that the refund claims were hit by the bar of unjust enrichment. The present appeals are directed against that order. 3. Material facts of the case are that, under exemption Notification No. 28/96, dated 11-9-1996 paper supplied by the appellant to Madhya Pradesh Text Book Board was eligible for a concessional rate of 5%. However, at the time of supply of consignments the appellants (being unaware of the exemption) paid duty at the earlier (higher) rate of 10% and raised invoices. This was in regard to supplies made till 15-9-1996. Subsequently, credit notes were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied the refund by wrongly invoking the aforesaid decisions of the Tribunal. 5. I have persued the records and heard the learned Senior Departmental Representative also. 6. Our earlier order of remand was passed for verification of the factual position about passing on the duty amounts mentioned in the invoices covering the supplies. After going through the record covering the transaction between the parties, the learned Deputy Commissioner has observed as under:- .........The party has taken the plea that duty has been borne by them as they have issued credit notes to buyers for the amounts which have been charged excess on account of excise duty. They have submitted copies of credit notes issued to the buyers of goods. I have gone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 32, 33, dated 15-9-1996. Issued to the buyers which also bear invoice Nos. vide which the material on which excess duty was paid has invariably been mentioned. Further, the CA has also certified the reversal of the amount for which refund claim has been filed to secondary Board of School Education, Bhopal. Therefore, it is established that the party has not passed on the duty to the buyers and have borne the same themselves. Therefore, unjust enrichment is not applicable in these cases and the refund claims are admissible to the party. Moreover, the refund claims were also sanctioned earlier on the basis of same facts and records by my predecessor and the Hqrs. Office at the time of post audit found the only irregularity regarding non p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have also decided the issue invoice of revenue vide O-I-A No. 75-76-76/CE/Appl/Ldh/2004. Applying the ratio of above judgment I accept the appeal and set aside the order in original. 8. Record of case and findings make it clear that assessee is right in its contention that the duty amounts claimed as refund had not been passed on to the buyers at the stage of transaction. The verification of the related accounts by the Deputy Commissioner has confirmed this. The learned Commissioner has also noted the correspondence from Madhya Pradesh Text Book Board. Thus, this is not a case where higher duty amount was first collected from the buyer and subsequently returned to through Credit notes. Instead, the higher amounts which are sought as r ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
