TaxTMI 
TaxTMI 
TaxTMI 
2025 (5) TMI 797
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.... the appellant preferred an appeal before the Commissioner (Appeals). Even Revenue filed their Appeal before the Commissioner (Appeals). The Commissioner (Appeals) took up the appeals filed by the assessee appellant and Revenue and passed the Order in-Appeal No. 38/SH/CE(A)/GHY/11 dated 30/11/2011, holding as under:- 23. I find that the Hon'ble Tribunal in plethora of cases has categorically held that post-clearance adjustments by issuing credit notes will prove that the discounts have been passed on and the question of unjust enrichment would not arise in such cases. Further, in a recent case the Hon'ble High Court of Punjab & Haryana, Chandigarh in the case of CCE, Chandigarh vs Vardhman Industries Ltd. [2011(271) ELT) 381(P&H)) has held that: "Refund - Unjust enrichment - Application of -Finalization of provisional assessment resulting in refund being due to assessee. Once it is proved that incidence of tax has not been passed on to consumer, than refund by credit notes has to go back to assessee only- In such a case principal of unjust enrichment is not attracted because duty has not been collected and pocketed by assessee-diverting such an amount to Consumer Welfar....
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....e cogent and proper material for rejecting the claim as is essential. Further, the Lower Authority has observed that the Appellant had not produced any document to show that the discounts given to the stockists/indentors by them were further passed on to their buyers in course of wholesale/retail sale by the stockist /indentors which itself is sufficient to substantiate that the Lower Authority's ignorance and neglect of the fact that discounts allowed by them under the agreements to their buyers, stockists/indentors were not generally available to independent buyers of the same class. He has not examined the facts properly nor considered the context applicable. He is impetuous and rash. The discounts were conditional or deferred discounts. The principle of classification of dealers on objective basis applies. He has failed to taken note of the established and accepted fact that the Credit Notes issued by them to the buyers who are eligible for the cash and quantity discounts, is by and itself, cogent and credible material that these discounts are, in fact, given (not imaginary) and would not form part of the "value" for assessment purpose; and which factum would also be consid....
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....aim preferred by the Appellant, being also held to be correct and proper is due and payable, with applicable interest thereon, to them. Considered in this background and in the light of the discussion, foregoing, the issues raised by the Review Commissioner made amenable accordingly, are answered, in a nutshell, as follows- (I) : "No-as discussed and held, foregoing"; "(II)':"Yes as discussed and held, foregoing": '(III)':"Yes; by setting aside the impugned Order; allowing consequential benefit, including payment of the refund claim of the Appellant, in full, under section 11B, together with the due interest thereon, by the Lower Authority, in terms of Section 11BB of the CEA, in the given facts and circumstances of this case, as discussed and held, forgoing". Held accordingly. 26. The Lower Authority has wantonly disregarded and violated the applicable abundant case-law, supra, which in favour of the Appellant, without just and reasonable cause. This is bad and violates judicial discipline, which he is also aware of. It has been held, amongst others, in the case of U.O.l. vs. Kamlakshi Finance Corporation Ltd. [1991(55)ELT433 (SC)), as follows: "The principles of judicia....
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.... below : - Subsequently, all the refund claims as mentioned above were rejected by them than Deputy Commissioner, Central Excise, Silchar vide his order dt. 2nd March of 2010. On being aggrieved the assessee filed an appeal against the said order before the Commissioner (Appeals), Customs & Central Excise, Guwahati. On the other hand, the Commissioner, Central Excise, Shillong reviewed the Order-in-Original under Section 35E (2) of the Central Excise Act, 1944 vide Order-in-Review No:07/10 dated 11.06.10 & directed Deputy Commissioner, Central Excise, Silchar to file an appeal before Commissioner (Appeal) mainly on the ground that the Lower Authority rejected the refund claim rising out of finalization of 4(Four) Nos. of Provisional Assessment by the AC/DC, on the ground of unjust enrichment. If refund is not admissible to the assessee on ground of "unjust enrichment", it should have been credited to Consumer Welfare Fund Section 12(c)of Central Excise Act, 1944 without rejecting it outright. The Commissioner (Appeals), Guwahati decided both the Appeals together vide Order-in- Appeal No. 38/SH/CE (A)/GHY/11 dt. 30.11.2011 & set aside the Deputy Commissioner's Order with c....