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TMI Blog2017 (9) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... lers and due to which on such elements of the differential discount there is a excess payment of excise duty. The appellant issued a credit note in respect of differential discount as well as additional discount of duty attributed thereon. Thereafter they filed refund claim of such excess payment of duty. The original authority rejected the claim of refund on ground of unjust enrichment. The appellant being aggrieved by the order of the sanctioning authority filed an appeal before the Commissioner (Appeals), who has upheld the order-in-original and rejected the appeal. Thereafter the appellant filed appeal before this Tribunal which was registered as Appeal No. E/1556/07. In the said appeal this Tribunal has passed order No. A/906/14/SMB/C- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty was paid it stand passed on to the ultimate consumer also. Therefore merely by issuing credit note it cannot be established that the incidence of duty has not been passed on. 4. On careful consideration of the submissions made by both the sides, I find that the Hon'ble High Court while remanding the matter given the following observations: "13. In the facts and circumstances of the present case and which the Tribunal has noted in Para 2, it appears that the duty incidence was passed on to the consumer and subsequently the appellant issued credit notes. The Order-in-Original observes that the incidence of duty which was refunded to the dealer through credit notes has not been passed on to the consumers (final purchasers) and that the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning the issue highlighted above and in accordance with law. We clarify that the Tribunal is free to come to and arrive at the conclusion that the issue stands fully covered in terms of the judgment of the Hon'ble Supreme Court. It can also come to a conclusion otherwise, but only after examining the facts and circumstances of the present case. We are, therefore, only remanding the matter to the Tribunal for a decision afresh and in accordance with law. While we remand it, we only highlight the issue raised by the assessee's Senior Counsel. We do not express any opinion either way. (iii) This appeal is allowed in the above terms with no order as to costs." From the above observation of the Hon'ble High Court to verify whether the inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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