COMMISSIONER OF CENTRAL EXCISE Vs. FENNER INDIA LTD.

JUDGEMENT

(1.) These 5 appeals filed by Revenue are directed against Order -in -Appeal Nos. 43/2003, 44/2003 and 45/2003 all dated 26.02.2003 and Order -in -Appeal Nos. 178/2003 and 179/2003 both dated 09.05.2003 by which the Ld. Commissioner (Appeals) has held that the respondent -assesee is eligible for refund and their claim is not hit by unjust enrichment.

(2.) Aggrieved by these orders, Revenue has come in appeal on various grounds, which are extracted herein under : -

(3.) Appearing on behalf of the Revenue, the Ld. JDR Shri C. Mani submits that the incidence of duty has been passed on by the respondent -assesee, M/s Fenner India Ltd., Madurai to their customers and it is after about a month, they had issued Credit Notes to them and, therefore, the incidence of duty has been passed on to the customers. In this connection, he relied on the judgment rendered by the Tribunal in the matter of Sangam processors (Bhilwara) Ltd., Vs. Collector of Central Excise, Jaipur reported in 2002 -TAXINDIAONLINE -59 -CESTAT -DEL -SB wherein, it has been held that Credit Note in respect of duty of incidence has been issued by the assessee to customers and hence the refund claim is not admissible to them. He also relied on the Larger Bench judgment rendered in the case of Grasim Industries (Chemical Division) Vs. Commissioner of Central Excise, Bhopal reported in vide Final Order No. 131/2003 -NB(B), dated 17.2.2003 wherein, also the assessee's contention of having issued the Credit Note already to the buyer and as such had borne the duty themselves was not accepted by the Larger Bench by relying on the judgment rendered by the Tribunal in the case of Sangam processors (Bhilwara) Ltd., Vs. Collector of Central Excise, Jaipur which was affirmed by the Supreme Court of India and reported in the case of Rajasthan Processors (India) Ltd., and Another Vs Commissioner of Central Excise, Jaipur reported in 1994 (70) ELT A. 182 (SC). The Larger Bench had followed the above judgment rendered by the Supreme Court and had also referred the judgment rendered by the Hon'ble Madras High Court in the matter of Addison and Company Vs Commissioner of Central Excise, Madras. The Larger Bench had dismissed the appeal and the assessee's contention was not accepted. The Ld. JDR Shri C. Mani relied on the judgment of the Larger Bench rendered in the case of S. Kumar's Ltd., Vs Commissioner of Central Excise, Indore reported in wherein also, as per Para 9 of the judgment, the Larger bench relied on the ratio in the decision of Sangam Processors (Bhilwara) Ltd., Vs Collector of Central Excise, Jaipur which has been affirmed by the Apex Court and by following the above judgment the claim for refund made by the appellant in that case was declined by the Large Bench.