TMI Blog2002 (2) TMI 294X X X X Extracts X X X X X X X X Extracts X X X X ..... rt are that the assessees claimed the benefit of deductions in terms of their refund claim for the period 1-4-87 to 31-3-88. The said claim was adjudicated by Order-in-Original No. 72/89, dated 6-12-89. The AC in the said order had sanctioned an amount of Rs. 2,27,356/- as refund after deducting an amount of Rs. 26,37,462/- and Rs. 17,17,808/- respectively being the duty involved in respect of Turnover Discount and Additional Discount which, he held it to be not deductible from the assessable value. An amount of Rs. 2,27,356/- was also appropriated under Section 11 of the Central Excise Act against the demand of this amount confirmed by the AC vide his OIO No. 60/89 from C.No. V/82/17/1/87-VC, dated 18-10-89. 3. Being aggrieved with this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... swered the question by their order dated 23-11-2000 and has referred the matter back to Tribunal to pass the final order in terms of Section 35K of the Act. The Hon'ble High Court has answered the questions in favour of the assessee and in para 18 has held that Tribunal was clearly in error in holding that despite the assessee having proved that it had not passed on the incidence of duty to its buyers, it was not entitled to the refund even when all the other conditions required to be satisfied under Section 11B had been satisfied. 6. The Hon'ble High Court with regard to first question has concluded in paras 11 to 17 as follows :- "11. Where the claimant is a manufacturer, the clause applicable would be clause (d) of the proviso to 11B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... burden of the duty paid by him to another, as that would result in unjust enrichment. It is that amount which is required to be credited to the Consumer Welfare Fund. The fact that the Consumer Welfare Fund has been constituted does not on that score require the authorities dealing with refund claims, to start an enquiry as to the price at which the goods had been sold to the ultimate consumer after the dealer who purchases the goods from the manufacturer, sells to its sub-dealer who in turn may sell to a retailer who in turn ultimately may sell the same to the actual consumer. The enrichment of the person, who has paid the duty and seeks refund would be unjust if he even while not suffering the burden of duty after having passed on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h manufacturer and has sold the goods to sub-dealers, retailers or consumers." 7. On a reading of the above findings, the question has been answered in favour of the assessee and therefore we hold that Commissioner (Appeals) order allowing the appeal of the assessee is required to be upheld. 8. Likewise, the answer given by the High Court to the second question is found in para 18 which is extracted herein below :- "The Tribunal therefore was clearly in error in holding that despite the assessee having proved that it had not passed on the incidence duty to its buyers, it was not entitled to the refund even when all the other conditions required to be satisfied under Section 11B had been satisfied." 9. As can be seen, the second ques ..... X X X X Extracts X X X X X X X X Extracts X X X X
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