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TMI Blog2007 (5) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... n this appeal had manufactured and supplied two kinds of brake blocks, one for freight stock and the other for coaching stock to the railways at the unit prices of Rs. 459/- and Rs. 400/- respectively under a contract for the period April to August, 2003. After clearance of the goods, the unit prices were reduced by way of amendments to the contract. This reduction of price resulted in excess p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the incidence of duty on the goods had been passed to the buyer at the time of clearance and, therefore, the refund claim is hit by the bar of unjust enrichment. The relevant pleadings contained in Para 7 of the grounds of the appeal are extracted below :- ....... in the instant case, the goods have been delivered vide invoices calculated on the price already agreed by the buyer and duty pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emical Division) v. Commissioner, 2003 (153) E.L.T. 694 (Tri.-LB), wherein the contention of the parties that, as they had already issued credit notes to the buyers, they should be held to have borne the duty burden themselves and their refund claims were not hit by unjust enrichment was rejected. On the other hand, ld. Counsel for the respondents has argued that, as the assessments in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed on the decision on a learned Single Member of the Tribunal in the case of Bansal Mechanical Works Ltd. Others v. CCE, 2003 (58) RLT 547 (CESTAT-Kol.). 3. I have given careful consideration to the submissions. From the impugned order, it appears that the crucial question of fact has not been convincingly answered by any of the lower authorities. According to the assessee, the credit note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e incidence of excess duty paid by the assessee had been passed on to the buyer at the time of clearance of the goods has to be settled first. This has to be done by the original authority itself. Accordingly, we set aside the orders of both the authorities and direct the original authority to dispose of the assessee s refund claim afresh after settling the above question of fact and thereafter ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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