2011 (8) TMI 989

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....46/2010 2. 2,23,271/- October, 2008 to May, 2009 E/847/2010 3. 2,84,517/- August, 2008 to December, 2008 E/848/2010 2. The respondent (assessee) had cleared their products on payment of duty on the transaction value of the goods during the aforesaid periods. These clearances were made to their dealers who made timely payments to the assessee. The assessee was pleased to grant to the dealers what was called 'timely payment discount' to the extent of 3%. This benefit was given by way of issuance of credit notes or cheques to the dealers. Subsequently the assessee claimed refund of duty paid on the amount of discount, which was allowed by the original authority which, in each case, ordered for refund of the duty....

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....9 (S.C.). Reliance has also been placed on CCE, Bangalore v. Mulder (India) Pvt. Ltd. - 2003 (158) E.L.T. 388 (Tri.-Bang.) and CCE, Madurai v. Vanithamani Chemicals Pvt. Ltd. - 2009 (238) E.L.T. 492 (Tri.-Chennai). It is submitted that mere issuance of cheques or credit notes to buyers subsequent to clearance of the goods would not have the effect of removing the bar of unjust enrichment. Referring to the judgment of the Hon'ble High Court of Rajastan relied on by the Commissioner (Appeals), the learned SDR submits that the Hon'ble Supreme Court's judgment in MRF case has overriding effect. It is also pointed out that, in the case of A.K. Spintex Ltd. (supra), credit notes are issued by the assessee (refund claimant) to the buyer and debit ....

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....ctly, by the Revenue before the Commissioner (Appeals). The appellate authority ordered refund in view of the Hon'ble High Court's judgment in A.K Spintex case (supra). On a perusal of the judgment of the Hon'ble High Court, I note that the facts of S. Kumar's Ltd. (supra) considered by the Tribunal's Larger Bench were also noted by the High Court and the same were distinguished. After this distinction of facts of the 2 cases, the Hon'ble High Court at once proceeded to examine the facts of the case in hand and to frame the issue to be settled. In this contest, I think it will be useful to incorporate herein an excerpt from the High Court's judgment : "We may at once observe, that this is nowhere, that the authorities below were of the v....