2017 (1) TMI 85

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..... efund was sought for. The appellant simultaneously agitated the issue of sales tax and presently an appeal to this effect is pending with the sales tax appellate authority. 2. The adjudicating authority rejected the claim on the basis that the appellant has not claimed the deduction of sales tax in the invoices at the time of clearance of the goods. Therefore, excise duty was correctly paid at the time of clearance. However, the Commissioner (Appeals) in the appeal filed by the appellant gave a finding: "8. It is an admitted position on fact that the Appellants had not charged any Sales tax I the invoices issued to their customer at the time of clearance of their excisable goods from their factory. In fact, in accordance with an order da .....

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..... usive of sales tax and excise duty paid but subsequently credit notes were issued in respect of excise duty attributable to the sales tax, incidence of duty has not been passed on. There is no dispute about the issue of credit notes as the same has been recorded in the order by the learned Commissioner (Appeals). It is submitted that the issue that where credit notes are issued, whether incidence of duty stands passed on or otherwise has been settled in favour of the assessee by the Hon'ble Supreme Court in the case of Commissioner of Central Excise, Madras v. Addison & Co. Ltd. 2016-TIOL-146-SC-CX-LB. As regards the litigation regarding sales tax matter pending before the sales tax appellate authority, he submits that the appellant agrees .....

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..... to Consumer Welfare Fund is not proper. In the present case, undisputedly the appellant has issued credit note in respect of duty attributed to sales tax amount. Therefore, incidence of the same has not been passed on to any other person. Accordingly, refund is not hit by mischief of unjust enrichment. The appellant is entitled for the refund. 8. As regards the sales tax matter pending before the sales tax appellate authority we are of the view that the adjudicating authority can take an affidavit from the appellant to the effect that in case it is held that the sales tax is not payable then the amount of sales tax paid by the appellant shall become part of the transaction value and accordingly the appellant shall return the refund amount .....

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