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TMI Blog2016 (10) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... India, delivered on 29-8-2016 by a Three Judge Bench in Civil Appeal No.7906 of 2002 {Commissioner of Central Excise, Madras Vs. M/s. Addison & Co. Ltd.} together with connected appeals, we are of the view that the appeal raises substantial questions of law. It is admitted on the following substantial questions of law: (i) Whether the CESTAT was right in not considering the fact that the incidence of duty had been passed on to the customer and hence the assessee was not eligible for refund? (ii) Whether the CESTAT was right in deciding the case on the basis of ruling of Hon'ble Madras High Court in the case of Addison & Co. where the Revenue has filed appeal against the said judgment before the Hon'ble Supreme Court even though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove, as refund. This refund was sanctioned but the amount was directed to be credited to the Consumer Welfare Fund as incidence of duty was passed on to the buyers. 5. Aggrieved and dissatisfied with this OrderinOriginal, an appeal was preferred to the First Appellate Authority. He dismissed the assessee's appeal filed on 31-8-2007. 6. Aggrieved by this Order, the matter was carried to the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), West Zonal Bench at Mumbai. By the impugned Order, the CESTAT has allowed this appeal on 25-4-2014, relying on the ruling of the Madras High Court in the case of Addison & Co. Vs. Commissioner of Central Excise, Madras, 2001 (129) E.L.T. Page 44 (Mad). 7. It is contended by Mr. Jetly, ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed on to the buyer. There is no material brought on record to show that the buyer to whom the incidence of duty was passed on by the assessee did not pass it on to any other person. That is why the statutory presumption under Section 12B has been raised. 11. Though the Madras High Court Judgment has been specifically overruled by the Hon'ble Supreme Court of India, we find some substance in the contention of Mr. Sridharan that the matter will have to go back to the Tribunal even if this Court were to allow the appeal of the Revenue and set aside the order of the Tribunal. 12. In para 16 of the Judgment delivered by the Hon'ble Supreme Court we find that presumption was raised from the facts that the duty which was originally p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce thereof the duty burden which was passed on to the buyer has not eventually fallen on the said buyer on account of this arrangement. Thus, if the dealer has been found to be recovering the amounts or having given credit to the buyer, then, whether the raising of the credit notes would negate the presumption raised in Section 12B of the Act or not is an issue or matter required to be examined by the Tribunal. We, therefore, pass the following order: ORDER (i) The appeal is allowed. The impugned Order passed by the Tribunal, dated 25-4-2014, is quashed and set aside. (ii) The appeal of the assessee, namely, Appeal No.E/1556/2007 is restored to the file of the Tribunal only for examining the issue highlighted above and in accordance wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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