CHEMPLAST SANMAR LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) This appeal is directed against the Order -in -Appeal No. 379/97 dt. 9.10.97 by which Ld. Commissioner (Appeals) rejected the refund claim by following the ratio of the decision rendered by the SRB, CEGAT in their order dt. 7.12.96 in the case of CCE v. Addison Co. had held that issue of credit notes to the buyers is immaterial once duty burden is passed on by the assessee at the time of clearance of the goods and that therefore refund claim is not admissible. Ld. Counsel further submits that the decision rendered by the Tribunal in the case of CCE v. Addison and Co. (supra) referred to by Ld. Commissioner (Appeals) in the impugned order has been set aside by the Hon'ble High Court of Judicature at Madras in the matter of Addison & Co. v. CCE, Madras by holding that credit notes, if issued simultaneously or subsequently after clearance of the goods, the burden of duty had been borne by the manufacturer themselves and has not been passed on to the dealers/customs. Ld. Counsel also invited out attention to the decision rendered by this Bench in the case of Shakun Overseas Ltd. v. CC, Chennai in which it was held that Doctrine of Unjust Enrichment is not applicable if the goods are sold at a price lesser than the landed cost and it was also held that the burden of duty has not been passed on by them to the actual customers and the same had been borne by the importer themselves. While coming to the findings in the above case, the Tribunal had relied on the judgments rendered by the Hon'ble High Court of Judicature at Madras in the case of Addison Co. v. CCE, Madras (supra) and the Hon'ble Apex Court judgment in the case of UOI v. Solar Pesticides (P) Ltd. and Mafatlal Industries Ltd. v. UOI (supra).

(2.) Ld. SDR Shri G. Sree Kumar Menon, after perusing the judgments rendered by the Hon'ble High Court of Judicature at Madras in the case of Addition and Co. (supra) submitted that though the Hon'ble High Court on the question of credit notes has answered the question in favour of the assessee and against the Revenue, the eligibility of the refund claim by examining such credit notes had not been gone into by the lower authority and therefore, the matter is required to be referred back to original authority for examining the eligibility of the refund claim by referring to the various original documents etc.

(3.) We have considered the rival submissions and are of the view -that the credit notes issued to the dealers who were the purchasers of the goods can be held to be admissible as evidence to the extent that the burden of duty has been borne by the manufacturer themselves and has not been passed on to the customers/dealers or subsequent customers. We allow the appeal by setting aside the oder of the Commissioner (Appeals) who has applied the ratio of the Tribunal decision rendered in the case of CCE, v. Addison and Co. since this judgment has been set aside by the Hon'ble High Court of Judicature at Madras . We have also examined the photostat copy of the judgment in which the issue framed was whether the burden of duty was passed on by the manufacturer to its various dealer by issue of credit notes was right in concluding that the ingredients of Section 11AB was not satisfied. This issue was answered by the Hon'ble High Court in favour of the assessee. We, therefore, allow the appeal on the above terms and remand the matter back to the original authority for examining the admissibility of refund claim with regard to the actual position by verifying the credit notes. Hence, the appeal is allowed by way of remand. The appeal shall be decided expeditiously, preferably within 6 months from the date of this order. Ordered accordingly.