ORDER
G.A. Brahma Deva, Member (J)
1. This is an appeal filed by the Revenue. The department has come in appeal on the following grounds :-
“(1) The Commissioner (Appeals) has failed to appreciate the facts of the case that the assessee had charged the duty amount from his customer through the invoices including the price of the impugned goods. The Commissioner (Appeals) has also mis-applied the ratio of the judgment given by the CEGAT in the case of CCE v. Oswal Cotton Spinning Mills reported in 1999 (108) E.L.T. 741 (T) on the count that he could not appreciate the judgment of the Tribunal given in the case of Raj Processors (India) and Anr. v. CCE, Jaipur reported in 1994 (71) E.L.T. 989 (T) wherein it was held that charging of duty at the time of clearance of goods and issue of credit notes at the subsequent stages would not alter the position that incidence of duty has not been passed on to the customers. The refund was held liable to be credited to CWF. This order of the CEGAT has also been upheld by the Supreme Court.
(2) The claim of refund is with reference to date of payment of duty as held in the case of CCE, Madras v. Addition & Co. reported in 1997 (93) E.L.T. 429
(1). After the date or payment of duty if any payment/adjustment are made same cannot be taken cognizance of for the purpose of Section 11B. Therefore, the original adjudicating authority was right in crediting the refund claim in the consumer welfare fund. From the invoices and the facts of the case it has been established that the duty liability was passed on to the customer and subsequently credit notes were issued to the customers to defend the claim of refund.”
2. Shri A.K. Jain, ld. JDR, appearing for the revenue reiterated the ground taken by the department and said that it was clear from the invoice that duty was charged and accordingly duty has been collected from the customer. Hence, principle of unjust enrichment is clearly applicable to this case. On the other hand, Shri Pradeep Jain, Co. Rep. appearing for the respondent submitted that the issue involved in this case has been covered by the decision of the Tribunal in the case of Oswal Cotton Spinning Mills 1999 (108) E.L.T. 741 (T).
3. I have carefully considered the matter. The Assistant Commissioner has denied the refund claim on the ground that they have not produced any purchase order etc. in support of their contention that the excise duty paid by them has not been passed on to the buyer. On the other hand, Commissioner (Appeals) has accepted the contention of the party relying upon the decision of the Tribunal in the case of Oswal Spinning Mills, particularly, in view of the affidavit filed by the party. In view of the decision of the Tribunal in the case of Raj Processors (India) referred to above it is clear that when once the duty has been paid at the time of clearance of goods and issue of credit notes at the subsequent stages would not alter the position that incidence of duty has not been passed on to the customers. The view taken by the Tribunal was upheld by the Apex Court. In view of this position, I accept the appeal filed by the department and accordingly, appeal is allowed.