TMI Blog2017 (9) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... M.R. Melvin, Supdt. (A.R) for respondent ORDER The facts of the case is that the appellant are engaged in the manufacture of motor vehicles they are clearing goods on payment of duty under provisional assessment. At the time of clearance in some cases discount was given. However, subsequently at the time of final assessment they have extended some additional discount to the dealers and due to which on such elements of the differential discount there is a excess payment of excise duty. The appellant issued a credit note in respect of differential discount as well as additional discount of duty attributed thereon. Thereafter they filed refund claim of such excess payment of duty. The original authority rejected the claim of refund on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upporting his claim he is unable to furnish invoice on this point of time and he requested that opportunity be given and the matter be remanded before the original authority. 3. Shri M.R. Melvin, Ld. Supdt. (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that the goods sold much before the issuance by credit note therefore whatever excise duty was paid it stand passed on to the ultimate consumer also. Therefore merely by issuing credit note it cannot be established that the incidence of duty has not been passed on. 4. On careful consideration of the submissions made by both the sides, I find that the Hon ble High Court while remanding the matter given the following observations: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld 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 2542014, 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 with law. We clarify that the Tribunal is free to come to and arrive at the conclusion that the issue stands fully covered in terms of the judgment of the Hon ble Supreme Court. It can also come to a conclusion otherwise, but only after examining the facts and circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X
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