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TMI Blog2014 (12) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment was ordered to be provisional on the basis of quantity discount scheme made known by the appellants and existing after 1-9-2000 onwards. At the end of the calendar years, the appellants had shown the quantity discount of Rs. 30,000/-, Rs. 60,000/- and Rs. 90,000/- for levels of performance of 80%, 100% and 120% respectively for their dealers calculated on the basis of the actual number of vehicles sold by their dealers over last year performance in respect of the clearance made during September, 2000 to December, 2000 and quantity discount of Rs. 20,000/-, Rs. 30,000/- and Rs. 40,000/- for levels of performance of 100%, 110% and 120% respectively for Mercedes-Benz car 203 C Class; Rs. 20,000/-, Rs. 50,000/-, Rs. 90,000/- and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f clearance of the goods. The question is whether the subsequent credit notes will take the refund claim out of the mischief of unjust enrichment. 7. The Tribunal in the case of Commissioner v. Adrash Gaur Gum Udyog reported in 2000 (120) E.L.T. 138 (T) relied upon earlier decision of the Tribunal in the case of Sangam Processors (Bhilwara) Ltd. v. Collector, 1994 (71) E.L.T. 989 (T), wherein it was held that once the duty burden was passed on to the customer at the time of clearance of goods, issuance of credit notes at a subsequent stage would not alter the position. The Bench in the "Adarsh Gaur Gum Udyog" case also noted that the decision in Sangam Processors (Bhilwara) Ltd. had been upheld by the Hon'ble Supreme Court. The Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. The condition which the claimant for refund must fulfil among other conditions is that he must not have passed on incidence of the duty to "any other person". 9. Section 11B(2) in the proviso thereunder entitles the claimant to receive refund if the amount relatable to any of the items set out in Clauses (a) to (1) under that proviso. Section 11B(2) refers to the Fund. The Fund referred to therein is the one created under Section 12C, which provides that the Central Government shall create a Fund called Consumer Welfare Fund. Section 12C sub-section 2(a) provides that to that fund shall be credited the amount of duty of excise referred to in sub-section (2) of Section 11B or sub-section (2) of Section 11C or sub-section (2) of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumer had been asked to bear the burden of the duty which had been initially paid by the manufacturer. 13. Although, the consumer is referred to in the Consumer Welfare Fund, constituted under Section 12C, the Excise Act is not primarily concerned with the actual consumer of the manufacture and product on which duty is levied. The duty is levied on the manufacturer and the quantum of duty is determined with reference to the price at which the manufacturer sells to the buyer, who, in most cases will be a dealer, and not on the price at which that buyer in turn sells to his sub-dealer or to the retailer or to the ultimate consumer. 14. Section 11B is intended to prevent a person who has paid duty or borne it initially from receivi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing on of the incidence of the duty if he merely reduces his burden by receiving the refund. The possibility that the dealer who has obtained goods from the manufacturer may charge to his buyer the full amount of the duty ignoring the refund received by the manufacturer cannot be a ground for denying refund to the manufacturer. 16. The word 'buyer' used in Section 12B also cannot be construed as referring to the ultimate consumer. The buyer referred to therein in the normal circumstances is the buyer who buys the goods from the person who has paid duty. 17. The primary object of the provision which is intended to deter or prevent unjust enrichment is to prevent enrichment of the person who has paid duty and who seeks refund of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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