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TMI Blog2018 (7) TMI 1521X X X X Extracts X X X X X X X X Extracts X X X X ..... 31121/2017 & E/21472/2015 - M/30242/2018 - Dated:- 19-6-2018 - Mr. P.V. SUBBA RAO, MEMBER (TECHNICAL) Shri B. Gunaranjan, Advocate for the Appellant. None for the Respondent. [Order per: P. VENKATA SUBBA RAO] 1. This application for condonation of delay was filed by the Department seeking condonation of delay of 784 days in filing the appeal against the Order-in-Appeal. It has been explained by the Learned Departmental Representative that the delay was caused because the Order-in-Appeal was passed by the Learned Commissioner of Appeals covering two Orders-in-Original and they should have filed two separate appeals. Instead, they committed the mistake of filing only one. Due to incorrect appreciation of the procedures ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refully. M/s. AP Paper Mills Ltd filed 6 Refund claims for the period from February, 99 to April, 2000 for an amount of ₹ 3,68,316/-. The applicants claimed Freight Rebate to be given as a refund which was extended to their customers/dealers. The Paper and Paper Board which has been cleared to depots on stock transfer basis and from there the assesses have sold the same to their dealers/customers after giving Freight Rebates. Section 4 has been amended with effect from 28.09.1996. Each depot, Branch office or consignment agent premises from the goods are sold as a place of removal with effect from 28.09.96. 15.2 The assessee have raised invoices while doing stock transfer from the factory gate and duties have been paid at factor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the price declarations. The price declarations so filed contain a mention about the proposed passing on of discounts at a later date. This practice is adopted since long and is acceptable under law provided the assessments are provisional. But in the case of the applicants the assessments were always final. 15.5 The decision of the Hon'ble Supreme Court in Mafatlal Industries case represented in ELT 1997 (89) 247 (SC) wherein the Supreme Court held that giving refund to the assessee amounts to unjust enrichment while the burden has passed on to the ultimate buyer at the time of clearance of the goods. Giving subsequent discounts in a final assessment value and granting refund thereof would amount to unjust enrichment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Appeals relying on judgment of Hon'ble High Court of Madras in Edison case needs to be set aside as it has been overruled by the Apex Court. 5. I find that this is a case of refund arising out of a dispute with respect to the valuation in terms of Sec.4 and consequently the question is whether the assessee is entitled to refund of duty in respect of the trade discounts which he has given subsequent to the clearance of the goods. This refund was rejected by the Assistant Commissioner on merits (not on the grounds of unjust enrichment itself). As these cases involve the question of valuation, I find they should appropriately go to the Division Bench, although amounts involved are not large. 6. The Registry is directed to pla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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