TMI Blog2016 (2) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... id that the incidence of duty has been passed on by the assessee to their customer as held in Universal Cylinders Limited. The said judgment of the Tribunal has been affirmed by the Hon’ble Apex Court [2004 (8) TMI 690 - SUPREME COURT]. In the case of IBP Limited (Supra), this Tribunal held that if the credit notes are genuine and had been acted upon resulting in neutralizing the higher incidence of duty earlier passed on, the refund claim would no longer be hit by the principle of unjust enrichment. - Decided in favour of assessee. - Appeal No. E/1757-1762/2006-EX[DB] - Final Order No. 53030-53035/2015 - Dated:- 23-9-2015 - SMT. SULEKHA BEEVI C.S., MEMBER (JUDICIAL) AND SHRI B. RAVICHANDRAN, MEMBER (TECHNICAL) For the Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that even if the credit notes are issued, the doctrine of unjust enrichment will apply. 2. During the arguments, the learned AR strongly contended that issue of credit note letter will not help the respondents to overcome the bar of unjust enrichment. He reiterated that this Tribunal s decision in the case of Snagam Processor (Bhilwari) Ltd. (Supra) as affirmed by the Hon ble Supreme Court, should have been followed by the lower authority while considering the issue. On the other hand, learned counsels appearing on behalf of the respondents stated that the ratio of this Tribunal s decision in the case of Sangam Processors (Bhilwari) Ltd. is not applicable to the present case both on the ground of different facts and also later cases deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present cases, the only point for decision is whether or not the respondent eligible to get refund of excess duty paid in cases where such excess duty collected from the buyers were restored to the buyers by way of credit notes. The Revenue relied on this Tribunals decision in the case of Sangam Processors (Bhilwari) Ltd. (Supra), we find that in the said case, the Tribunal was dealing with the refund claim which arose after issue of notification under Section 11C of the Central Excise Act, 1944. The Tribunal held that the appellants have passed on incidence of tax and held that in terms of section 11C (2) when the duty incidence was passed on to the customers, the refund claim to the appellant will be hit by the bar of unjust enrichmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the person who claims refund of duty as shifted the burden to another. There can be no passing on of the incidence of the duty if he merely reduces his burden by receiving the refund. The possibility that the dealer who has obtained goods from the manufacturer may charge to his buyer the full amount of the duty ignoring the refund received by the manufacturer cannot be a ground for denying refund to the manufacturer. The word buyer used in Section 12B also cannot be construed as referring to the ultimate consumer. The buyer referred to therein in the normal circumstances is the buyer who buys the goods from the person who has paid duty. The primary object of the provision which is intended to deter or prevent unjust enrichment is t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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