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2016 (10) TMI 511 - BOMBAY HIGH COURT

2016 (10) TMI 511 - BOMBAY HIGH COURT - TMI - Eligibility of refund - unjust enrichment - raising credit notes - Held that:- We are of the opinion that if the present assessee relies on the credit notes raised on the dealer, then, an opportunity should be given to it to establish and prove that in pursuance 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 am .....

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th 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 Hon'ble Supreme Court of 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 & .....

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where the Revenue has filed appeal against the said judgment before the Hon'ble Supreme Court even though no stay has been granted by the Apex Court? 2. With the consent of both sides, we dispose of the appeal finally by this order. 3. The respondent/assessee is engaged in the manufacture of motor-vehicles falling under Chapter Head 8703.90. The assessee clears the motor-vehicles to their dealers at a fixed price and allows quantity discount on the basis of actual number of vehicles sold by .....

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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 assessm .....

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ried 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, appearing on behalf of the appellant that against the view taken by the Madras High Court, the Revenue has preferred appeal to the Suprem .....

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the goods. The subsequent credit notes will not take the refund 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 Judgme .....

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ssessee 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 .....

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a 2, it appears that the duty incidence was passed on to the consumer and subsequently the appellant issued credit notes. The Order-in-Original observes that the incidence of duty which was refunded to the dealer through credit notes has not been passed on to the consumers (final purchasers) and 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 A .....

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