9911796707
TMI Blog2011 (8) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed as refund had been passed on to the buyers (dealers). There is nothing on record to indicate that this burden was discharged beyond the pale of doubt. Clearly, therefore, the bar of unjust enrichment would operate against the assessee - mere issuance of credit notes by a refund claimant (assessee) subsequent to clearance of goods would not obliterate the bar of unjust enrichment - Following decision of S. Kumar’s Ltd. v. CCE, Indore [2003 (2) TMI 85 - CEGAT, NEW DELHI] - Decided in favour of Revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... hority were reviewed in the department and, accordingly, appeals were preferred to the Commissioner (Appeals). The appellate authority, relying on the judgment of Hon'ble High Court of Rajasthan in the case of Union of India v. A.K. Spintex Ltd. and Another - 2009 (234) E.L.T. 41 (Raj.) = 2009-TIOL-12-HC-RAJ-CX and the Tribunal's decision in the case of Peacock Industries Ltd. - 2008 (227) E.L.T. 609 (Tri.-Del.), upheld the decision of the lower authority and dismissed the Revenue's appeals. Hence the present appeals of the department. 4. Learned SDR reiterates the grounds of these appeals. She also claims support from the Tribunal's Larger Bench decision in the cases of S. Kumar's Ltd. v. CCE, Indore - 2003 (153) E.L.T. 217 (Tri.-LB) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 2-4-2009 in Appeal No. E/362/2008 (Hindalco Industries Ltd. v. CCE, Belapur) reported in 2009-TIOL-845-CESTAT-MUM = 2009 (240) E.L.T. 693 (Tri. - Mum.). Of course, he would also rely on the Hon'ble High Court's judgment in the case of A.K. Spintex Ltd. (supra) which was relied on by the lower appellate authority. 6 I have given careful consideration to the submissions and the case law cited by both sides. The assessee's entitlement to refund has not been questioned on merits. The point of dispute is unjust enrichment. In the assessee's own earlier case cited by the learned counsel, this point was not determined and therefore that decision is of no aid. The original authority clearly found that the assessee had borne the incidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntitled to claim for any refund, while, herein positive case of the assessee is, that it also issued corresponding credit notes, which fact has also not been disputed any where, before the authorities below. Therefore, the question required to be examined is, as to whether despite exchanges of debit notes and credit notes respectively, between the assessee and its immediate purchaser, the assessee is not entitled to claim refund, so as to find, that the Tribunal was wrong in allowing the refund." Obviously, the Hon'ble High Court was dealing with a case involving exchange of debit notes and credit notes between the seller (assessee) and the buyer. In the instant case, there was no such exchange of debit notes and credit notes. Of course, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
