TMI Blog2014 (12) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... desh High Court in order [2014 (3) TMI 671 - ANDHRA PRADESH HIGH COURT] have followed Addison & Co. I also find that the facts of present appeal are common with the facts of the Addison & Co. (supra) - Decided in favour of assessee. - E/1556/2007-Mum - Final Order No. A/906/2014-WZB/C-IV(SMB) - Dated:- 25-4-2014 - Shri Anil Choudhary, Member (J) Ms. Anjali Hirawat, Advocate, for the Appellant. Shri V.C. Khole, Dy. Commissioner, AR, for the Respondent. ORDER Heard the parties. 2. The facts in brief of the case are that the appellants were clearing products viz. Motor Vehicles to their dealers at a fixed rate and allowing quantity discount. The actual quantum of discount was known only after completion of the calendar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealer through credit notes had not been passed on to the customer (final purchaser) and that the duty burden was passed on to the buyer but refund claim was filed by the manufacturer i.e. the appellants. The Deputy Commissioner sanctioned the refund of ₹ 40,59,180/- but credited it to the Consumer Welfare Fund on the ground that the refund was hit by unjust enrichment. 3. The learned Commissioner (Appeals) upheld the Order-in-Original and recorded the following findings in the operative part of the order, in Paras 6, 7 and 8 are as under :- 6. I find that in the instant case the appellants have passed on the incentive and the consequent duty relief to the dealers by way of credit notes issued subsequent to the clearance of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ending before the Hon ble Supreme Court . In para 9 of the order it was further observed that the ratio in the decision of Sangam Processors (Bhilwara) Ltd., which had. been affirmed by the Hon ble Apex Court, has to be followed . (emphasis added) 8. To conclude with, the refund claim is hit by unjust enrichment. The lower authority has rightly credited the amount to the Consumer Welfare Fund. Consequently the appeal is rejected. 4. The learned Counsel for the appellant states that the facts herein are covered by the ruling of Hon ble Madras High Court in the case of Addison Co. v. CCE, Madras - 2001 (129) E.L.T. 44 (Mad.). She relies on the following paras :- 8. It is significant that neither Section 11B nor Section 12B of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a manufacturer the clause applicable would be clause (d) of the proviso to Section 11B(2). That clause refers to duty of excise paid by the manufacturer if he had not passed on incidence of such duty to any other person . 12. The claim made by the manufacturer here is required to be considered under that provision. That provision has, of course, to be read along with the presumption provided in Section 12B. If the manufacturer can be said to have rebutted the presumption under Section 12B and has fulfilled the condition set out in clause (b) of proviso to Section 11B(2), manufacturer would be entitled to refund. Such refund cannot be denied on the ground that there was no evidence to show as to who the ultimate consumer of the produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d seeks refund would be unjust if he even while not suffering the burden of duty after having passed on the same to another obtains refund and retains such refund with him. There would be nothing unjust where the person who has paid duty and has not passed on that burden to another receives refund thereby reducing the burden which he was not required to bear but had borne. 15. The language employed in Section 11B therefore is not capable of being construed as having reference to the ultimate consumer of the product. What has to be demonstrated by the claimant is that the burden of the duty paid had not been passed on by him to any other person. The passing on will occur only if the person who claims refund of duty has shifted the burden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject to payment of ₹ 25,000/- by the petitioner to the respondent by way of cost which shall not be costs in the cause. Leave granted. Printing dispensed with. The matter be heard on the SLP paper book itself. Liberty to file additional papers, if any, within six weeks. Original record shall be requisitioned. 6. The learned AR relying on the decision by the Hon ble Supreme Court in Addison Co., states that the present appeal is to be dismissed as the ruling of Hon ble Madras High Court is in jeopardy. 7. Having considered the rival contentions, I find that the ruling of Hon ble Madras High Court in the case of Addison Co. is good law. No stay have been given by the Hon ble Apex Court. Further the Hon ble Andhra Prades ..... X X X X Extracts X X X X X X X X Extracts X X X X
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