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TMI Blog2016 (8) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... . The discount amount was passed on through credit notes. The appellant had furnished a Chartered Accountant certificate showing that the duty was not recovered and had not been passed on to the buyers. A show-cause notice was issued raising the allegation that appellants did not opt for provisional assessment and therefore cannot deduct the discount from transaction value, after clearance of goods and therefore are not eligible for refund. It was also alleged that as the stockists/dealers did not know the quantum of discount before clearances, the refund would be hit by unjust enrichment. After adjudication, the original authority rejected the refund claim. In appeal, the Commissioner(Appeals) upheld the rejection. Being aggrieved, the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to the second issue, whether by issuing credit notes, subsequent to clearances, the refund would be barred by unjust enrichment, the learned counsel placed reliance on the judgment laid by the Hon ble High Court in A.P. Paper Mills Ltd. Vs. CCE, Vishakapatnam [2014(306) ELT 344 (AP)]. 3. Against this the learned AR Shri Deepak supported the findings in the impugned order. He argued that when the appellants did not disclose the amount of discount to the stockists, the appellants ought to have opted for provisional assessment. Further that appellant has not discharged the burden of establishing that the incidence of duty has not passed on to the other. He placed reliance on the decision cited in Sangam Processors Ltd. [1994(70) ELT A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot deprive the appellant in claiming the refund claim of the excess paid earlier. Also, in our view the relevance of assessment either provisional or otherwise comes into play only for the purpose of computation of the time-limit from the relevant date, in filing the refund claim under Section 11B of CEA, 1944. It has nothing to do with the eligibility of refund. In the present case, the refund claim was filed within one year from the date of clearance of goods, which is the date of payment of duty, hence, the criterion of provisional assessment is irrelevant." 5. The second objection raised by Revenue is that the incidence of duty has been passed on to buyers and therefore the refund is barred by unjust enrichment. The appellant has submi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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