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TMI Blog2011 (3) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... sh that the duty has not been recovered by them from their customers - Assessee paid duty under protest and the price lists were also provisional on account of litigation - The Tribunal's decision in the case of CCE Vadodara Vs. Alembic Ltd. (2008 -TMI - 32294 - CESTAT, AHMEDABAD) in which an identical issue was considered and it was held that there being no statutory requirement that commercial i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 985 and as a reason on account of the on going dispute between the appellant the Revenue as regards the appellant s claim of deduction of trade discounts given to the distributors. It stands ultimately concluded, till the Hon ble Supreme Court that such trade discounts are admissible deductions. As a consequence the refund claim stands filed by the assessee. 2. The said refund claims have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the unjust enrichment angle has to be examined. As such, we note that there is factual dispute on the above issue. 4. Apart from the above, the appellants have contended that the duty paid by them to the Revenue does not stand collected by them from their customers, even though the separate element of duty was not being reflected in the invoices. For better appreciation we reproduce the rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scount on Rs.100/-(+) Basic Rs.54/- (+) duty Rs.06/- (=) Rs.60/- The agree discount was given on duty-cum-price thereby sale price at Rs.60/- inclusive of recovery of Rs.6/- as duty. 5. By drawing our attention to the above hypothetical example given by the appellant, learned advocate submits that the same clarifies that the duty being collected by the appellant from their customer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble High Court of Gujarat vide their order dated 22.10.08, when the appeal filed by the Revenue was rejected. 6. After hearing the learned DR, we note that the lower authorities have not examined the issue from the above angle, neither the decisions relied upon by the appellant were before them. As such, we deem it proper to set aside the impugned order and remand the matter to original adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X
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