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TMI Blog2016 (11) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... OS APPEAL No. 3742 of 2011 - - - Dated:- 26-10-2016 - MR. NOOTY. RAMAMOHANA RAO AND DR. ANITA SUMANTH, JJ. For The Appellant : Mr.Ragavan Ramabadhran for Mr.Lakshmi Kumaran For The Respondents : Mr.A.P.Srinivas for R1 R2 JUDGMENT (Judgment of this Court was delivered by ANITA SUMANTH, J.) 1.This Civil Miscellaneous Appeal is filed at the instance of the Appellant challenging an order of the Customs, Excise and Service Tax Appellate Tribunal, dated 23.02.2011. 2.This appeal was admitted on the following substantial question of law: Whether the excise duty refund arising due to duty paid provisionally at the time of clearance of goods on stock transfer being higher than the excise duty finally assessed beca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon which excise duty on an account of ₹ 1,70,68,445/-, their includes basic excise duty cess at 2% and cess at 1% was remitted. Taking into account the credit notes issued, the value of clearances effected from the Branch/Regional Office to dealers was valued at a sum of ₹ 10,64,89,434/- upon which an amount of ₹ 1,74,09,009/- being basic excise duty plus cess was at 2% and 1% was required to be paid. The difference in pricing arises after taking into account the upward and downward price revision which would include the component of discount by way of credit notes. 5.The Assessing Authority computed the excess payment of excise duty by the Appellant at a figure of ₹ 9,50,745/-. There is thus no dispute that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notes, has been accepted in the following terms: 14. We have considered the submissions made by the counsel carefully and examined the material on record. The questions that arise for consideration in this case are whether the Assessee is entitled for a refund and whether there would be unjust enrichment if the said refund is allowed. It was held by the Special Bench of CEGAT, New Delhi by its judgment dated 17.03.1994 in Collector of Central Excise, Madras Vs. Addison Co. Ltd. that the turnover discount is not an admissible abatement on the ground that the quantum of discount was not known prior to the removable of the goods. In an appeal filed by the respondent assessee, this Court by its judgment dated 11.03.1997 in Addision and C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so to Section 11-B(2) of the Act to mean any buyer not restricted to the first buyer. In such an event, the burden is on the manufacturer to establish that the incidence of duty borne by him has not been passed on to at any stage in the transaction till the goods reach the hands of the end user. 21. That a consumer can make an application for refund is clear from paras 98 99 of the judgment of this Court in Mafatlal Industries (supra). We are bound by the said findings of a Larger Bench of this Court. The word buyer in Clause (e) to proviso to Section 11-B (2) of the Act cannot be restricted to the first buyer from the manufacturer. Another submission which remains to be considered is the requirement of verification to be done for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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