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TMI Blog2016 (2) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... lar, these appeals are taken up together for disposal. The facts of the case are that the respondents are engaged in the manufacture of explosives liable to Central Excise duty. They have filed refund claims towards duty paid by them consequent on finalization of price between them and the buyer. The assessments were provisional at the time of clearance of goods. These claims were rejected by the original authority on the ground that the excess duty has been collected by the respondents from their respective buyers and hence, refund now will result in unjust enrichment. On appeals filed by the respondents, the Commissioner (Appeals) vide impugned orders set aside the original orders and held the respondents eligible for refund as such claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. A.K. Spintex Limited reported in 2009 (234) ELT 41 (Raj.) 3. Commissioner of Central Excise, Ghaziabad Vs. Mahavir Cylinders reported in 2012 (284) ELT 54 (Tri-Del) 4. Commissioner of C. Ex., Nagpur Vs. Solar Capitals Ltd. reported in 2006 (205) ELT 403 (Tri-Mumbai) 5. CCE-Bhopal Vs. Indian Explosives Limited reported in 2015 (315) ELT 606 (Tri.-Delhi). 6. Commissioner of Central Excise, Jaipur Vs. Universal Cylinders Limited reported in 2004 (175) ELT 202 Tribunal Delhi. 7. Commissioner of Central Excise, Raipur Vs. IBP Limited reported in 2013 (288) ELT 385 (Tri.-Delhi) 3. It was contended on behalf of the respondents that in their case assessments were provisional as the final price of goods was to be settled later. On s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollected from the buyer by the respondents at the time of original clearances was restored back to the buyers by way of credit notes which was adjusted against the dues of the respondents. The set of facts in the present appeals are thus materially different from the case of Sangam Processors (Bhilwari) Ltd. Further, the Honble Rajasthan High Court in the case of A.K. Spintex Limited (Supra) held that the Revenues contention that issue of debit note or credit note cannot have the effect of reversal of passing of the burden as it is only a paper transaction to get undue benefits by the assessee cannot be accepted. The Hon'ble High Court held that in cases where the assessee is able to show that the burden is not passed on, or it has been r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of IBP Limited (Supra) it was held that when initially goods have been supplied at a provisional price which subsequently had been reduced and when the higher price initially charged along with higher duty had been adjusted by the assessee from the subsequent supplies made, it cannot be said that the incidence of duty has been passed on by the assessee to their customer as held in Universal Cylinders Limited. The said judgment of the Tribunal has been affirmed by the Hon'ble Apex Court reported in 2005 (179) ELT A41. 8. In the case of IBP Limited (Supra), this Tribunal held that if the credit notes are genuine and had been acted upon resulting in neutralizing the higher incidence of duty earlier passed on, the refund claim would no lo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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