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TMI Blog2012 (5) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commissioner (Appeals) on 31st January 2005. By the impugned order, the Commissioner (Appeals) has dismissed the appeals on the ground that the appellants were unable to establish that they had not passed over the burden of duty to the customers and hence the claim for refund was rightly rejected by the Adjudicating Authority. 2. The impugned order has been passed pursuant to the remand of the matter by the Tribunal under its order dated 27th October 2004 in appeals No. E/775 and E/776/04. While remanding the matter, the Tribunal had held that the issue which was left to be considered by the Commissioner (Appeals) was whether the burden of duty had been passed on to the customers or not by the appellants and in that regard in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stablish that the appellants had not passed over the burden of the duty on the customers. He further submitted that the Commissioner (Appeals) in that regard also failed to take note of the finding of the Adjudicating Authority based on assessment of materials on record which was to the fact that the scrutiny of transactions filed by the appellants disclosed benefit of discount namely cash discount and trade discount had already been passed on by the appellants to its customers and, therefore, the doctrine of unjust enrichment was not applicable to the proceedings. He further submitted that records also disclosed that the credit notes were issued only after receipt of amount less than the invoice amount in relation to the products cleared b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t aspect of the matter held thus : "Further, from the documents produced by the respondents, it is evident that incidence of duty was initially passed on to the buyers as they were clearing goods from their depot without giving any discount and charged duty on full assessable value which also included the amount given as discount to the buyers later on. Discounts were given to their buyers later on by way of credit notes. This shows that incidence of duty was initially passed on to the buyers and credit notes issued subsequently does not alter the position. Issue already stand decided vide order-in-appeal No. 71-74/CE/Appeal/Ldh/2004 dated 28-1-2004 in the case of M/s. Bharat Box Factory, Ludhiana where under following the judgment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epared by the assessee no document could be pointed out which could reveal that the credit notes were in fact in relation to the duty element. As rightly pointed out by the Departmental Representative the sample copy of the credit note to which our attention was drawn which is dated 28th January 1995 and stated to be in relation to invoice No. 41750 dated January 1995 for total amount of Rs. 35,165/-, the invoice discloses that the price was inclusive of excise duty, freight and insurance, but the credit note on the face of it nowhere discloses that it relates to the duty element which was sought to be included in the corresponding invoice price. In fact, similarly even the ledger book entries to which attention was drawn by the learned adv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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