9911796707
TMI Blog2004 (4) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... oted that the judgment relied by the appellants and held it to be are distinguishable and not applicable to the facts of the case. He has noted that the Cost Certificate will not be able to exclusively establish as to whether the incidence of excess Central Excise Duty paid on polyester monofilament yarn of above 2000 deniers has been ultimately passed on to the customers or not, when the zip fasteners manufactured out of them, were sold by M/s. Sanghi Zip Fasteners (P) to the buyers. He has given detailed findings as to how the appellants have failed to establish that the incidence of higher rate of duty has been ultimately passed on to the buyers. In the Show Cause Notice dated 25-10-1995, in Para 3 it had been brought out that on verific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another person or not. Therefore, he submits that the show cause notice was restricted only on this ground and as the Madras High Court had answered the point, the question of appellant s purchase having passed on the credit not would not arise. He submits that the Larger Bench in the case of S. Kumar s Ltd. [2003 (153) E.L.T. 217], dealt with an aspect pertaining to appellant having issued credit notes or cheques and that being hit by the doctrine of unjust enrichment. He submits that the show cause notice restricted to the buyer having passed on the incidence of duty. This argument is disputed by the ld. D.R. who pointed out from third para of the show cause notice itself that the appellants along with their application had relied on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal has come up for consideration before Larger Bench by way of reference made by Single Member in Misc. Order No. M/79/02/NB (SM), dated 16-4-2002 [2002 (143) E.L.T. 641 (Tribunal)]. 2. Reference was necessitated since two co-ordinate Division Benches of this Tribunal have taken divergent views on the question whether post-clearance adjustment like issuance of credit notes or cheques by the assessee who is claiming refund, to buyer of the goods, taking back the burden of duty on the goods would help the assessee to get over the bar of unjust enrichment under Section 11B of the Central Excise Act. 3. The appellants were job workers for M/s. Dhvani Terrifabs Export Pvt. Ltd. (for short M/s. DTE). They received raw material (grey fab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the claim. The appeal filed by the assessee was dismissed by the Commissioner (Appeals) holding that in the light of the Tribunal s decision in CCE, Jaipur v. Adarsh Guar Gum Udyog, 2000 (120) E.L.T. 138 as well as Board s Circular No. 317/33/97/CX, dated 18-6-1997, the refund claim was hit by the principles of unjust enrichment under Section 11B. 5. It was contended by the ld. Counsel for the appellant that the decision of this Tribunal in the case of CCE, Madras v. Addison Co., 1997 (93) E.L.T. 429 was reversed by the Hon ble Madras High Court in Addison Co. v. CCE, Madras, 2001 (129) E.L.T. 44. 6. The main issue that was canvassed before us by the ld. Counsel for the appellant was that dismissal of the appeal in Sangam Processor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion or of dismissal alarming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the order granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order show the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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