TMI Blog2017 (1) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... become part of the transaction value and accordingly the appellant shall return the refund amount in accordance with law - Appeal allowed by way of remand. - Appeal No. E/2183, 2184 & 2186/2003 - - - Dated:- 14-10-2016 - Shri Ramesh Nair, Member (Judicial) And Shri C J Mathew, Member (Technical) Shri Nikhil Rungta, Advocate for the appellant Shri H.M. Dixit, Asstt. Commissioner (AR) for the respondent ORDER Per Ramesh Nair The fact of the case is that the appellant filed a refund claim in respect of excise duty attributed to the element of sales tax which was paid subsequent to the clearance of the goods. The appellant issued credit notes to the buyer of the goods in respect of the duty attributable to the sales ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax. Therefore grant of refund at this stage would be premature inasmuch as if the appellant succeeds before sales tax authorities then the situation will be different. Being aggrieved by the impugned order the appellant has filed this appeal. 4. Shri Nikhil Rangta, Learned Counsel for the appellant submits that as per the order of the Commissioner (Appeals) it was concluded that excise duty attributed to the sales tax paid even subsequent to the clearance of the goods is refundable as the sales tax is a permissible deduction provided under Section 4. However, the Commissioner (Appeals) denied the refund only on the basis of unjust enrichment. 5. He submits that as regards unjust enrichment is concerned, though the invoice was raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on. Accordingly, refund should be credited to Consumer Welfare Fund. This finding of the Commissioner (Appeals) is based on certain decision of this Tribunal that even if the credit note was subsequently issued, once the invoice was raised for full value the incidence of duty stands passed on and hence subsequent credit note will not alter the position. We find that as per the judgment of Larger Bench of the Supreme Court in the case of Addison Co Ltd. (supra) wherein it was held that if the credit note is issued in respect of duty already paid to the buyer, the incidence of such duty does not stand passed on to any other person. Therefore, following the ratio of the Supreme Court judgment, the order of the Commissioner (Appeals) order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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