TMI Blog2016 (10) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... he presumption raised in Section 12B of the Act or not is an issue or matter required to be examined by the Tribunal. The appeal of the assessee is restored to the file of the Tribunal only for examining the issue highlighted above and in accordance with law. - Central Excise Appeal No. 57 of 2015 - - - Dated:- 19-9-2016 - S. C. Dharmadhikari And B. P. Colabawalla, JJ. Mr. Pradeep S. Jetly with Mr. Jitendra B. Mishra for the Appellant Mr. V. Sridharan, Senior Counsel with Mr. Prakash Shah Mr. Jas Sanghavi i/by M/s. PDS Legal for the Respondent JUDGMENT ( Per Shri S. C. Dharmadhikari, J. ) 1. Heard both sides. Perused the Order of the Tribunal. On perusal of the same as also on perusal of the Judgment of the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch clearance effected on provisional assessment basis under Rule 7 of the Central Excise Rule, 2002. The provisional assessment was ordered on the basis of quantity discount scheme made known by the assessee and existing from 1-9-2000. 4. The assessee made a payment of ₹ 18,62,346/towards the differential duty in respect of debit notes raised on the dealers to whom excess quantity discount was passed on and on the other hand, requested for refund of an amount of ₹ 40,59,180/towards credit notes raised on various dealers to whom short quantity discount was passed on. The Assistant Commissioner, Central Excise, PuneIII Division finalised this provisional assessment vide OrderinOriginal dated 2982003. He confirmed the payment ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d claim out of the mischief of unjust enrichment. 8. The Madras High Court's view, according to Mr. Jetly, cannot be followed in such a case, not only bearing in mind the language of the provisions but also the peculiar facts. 9. Mr. Sridharan, learned Senior Counsel appearing on behalf of the assessee would submit that the Madras High Court's ruling in Addison (surpa) has been recently reversed by the Three Judge Bench Judgment, delivered on 29-8-2016. A copy of this Judgment has been handed over to us by Mr. Sridharan. 10. Having perused this Judgment, we find that as far as Addison is concerned, the Hon'ble Supreme Court has analysed Section 11B of the Central Excise Act, 1944 and has held that the assessee in that c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that the duty burden was passed on to the buyer and refund claimed was filed by the manufacturer, that is, the appellant. 14. Beyond following the Madras High Court view and the later view taken by the Andhra Pradesh High Court, we do not find that the Tribunal has discussed anything about the factual aspects. It came to the conclusion that the facts in the case of Sangam Processors (Bhilwara) Ltd. Vs. Collector {1994 (71) E.L.T. 989 (T)}, and which also is the view taken by the Tribunal, were inapplicable. The manufacturer in that case had applied for refund without paying back the duty collected from the buyers/dealers. We are of the opinion that if the present assessee relies on the credit notes raised on the dealer, then, an oppor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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