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TMI Blog2016 (2) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... e with law, especially when the assessment was not provisional. Further I find force in the plea of the learned advocate that the issue on merits was never the subject matter of the proceedings and introduction of the same, for the first time, by Commissioner (Appeals), while deciding the remand proceedings, cannot be appreciated. Taking up the matter on merits, which were not subject matter of the show-cause notice, amounts to going beyond the show-cause notice. Not only that when the matter was addressed by the Tribunal for the first time, Revenue never raised the issue that the refund claim is not admissible even otherwise. The matter was argued only on the issue of unjust enrichment. As such, fully agree that rejection of refund claim o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cting the said refund claim on the ground that the appellant has not produced any documentary evidence to show that the benefits have been passed on to the ultimate customers. 2. The said order of the original adjudicating authority was upheld by Commissioner (Appeals). Thereafter an appeal was filed before Tribunal, who vide their Final Order No. 939/2009, dated 13-5-2009 took note of various decisions of the Tribunal and observed that there is no requirement to establish that the discount has reached the ultimate customers. As long as the persons who purchased the goods from the manufacturer have been given credit notes, the same would suffice the principles of unjust enrichment. The Tribunal took note of the decision in the cases of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its and on the ground which was not the subject matter of the show cause notice. The proceedings out of the show-cause notice had travelled upto the Tribunal, when the matter was remanded only on the point of unjust enrichment and Commissioner (Appeals) has no jurisdiction to go beyond the scope of such proceedings and to reject the claim on altogether new issue. As regards unjust enrichment, he submitted that there is no dispute about the credit notes having been issued to the distributors to whom the goods were sold. As such, for all purposes, distributor is the buyer of the goods and the credit notes having been issued to the said distributor, the principles of unjust enrichment stand fully satisfied. The Revenue is not within its jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s) against the rejection of the refund claim vide adjudication order passed in de novo proceedings that Commissioner (Appeals) examined the refund claim on merits. Though I find acceptance in the reasononings of Commissioner (Appeals) that when the quantitative discounts were not known at the time of removal of the goods and the duty was paid on the higher assessable value, subsequent reduction of the assessable value may not be in accordance with law, especially when the assessment was not provisional. Further I find force in the plea of the learned advocate that the issue on merits was never the subject matter of the proceedings and introduction of the same, for the first time, by Commissioner (Appeals), while deciding the remand proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the Tribunal. The original adjudicating authority in remand proceedings has not adverted to the said decisions and has rejected the refund claim on the same very limited ground, which was adopted by him in the first round of litigation. 10. It is not disputed that the appellant has given quantitative discounts to their distributors and have issued credit notes to them. The distributors are the buyers and for the purpose of unjust enrichment, they have to be considered so. There is no concept of not passing on the duty to the ultimate consumer and as long as the buyers had been passed on the benefit of reduction in duty, the same would satisfy the principles of unjust enrichment. Accordingly I hold that the appellant is entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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