ORDER
M.V. Ravindran, Member (J)
1. The issue involved in this case is in respect of refund claims of the respondent company rejected by the adjudicating authority, but on appeal, the Commissioner (Appeals) allowed the appeal of the respondent company. The Department being aggrieved by the said Order-in-Appeal, has preferred this appeal.
2. Learned S.D.R. submits that the refund claim ought not to have been sanctioned to the respondent company, as they had issued Credit Notes to their Purchasers. He, in this context, relies upon the decided case-laws wherein it has been settled that refund cannot be sanctioned on the basis of Credit Notes being issued to the Purchasers of the goods.
3. None appeared for the respondent company, despite notice.
4. Considered the submissions made by the learned S.D.R. and perused the records. I find that the Commissioner (Appeals) in his findings observed as follows:-
I have gone through the Order-in-Original, contention of the appellant in the appeal memorandum as well as at the time of personal hearing. There is no dispute that the appellant made over-payment because of some calculation mistake. Therefore, the amount claimed by the appellant did not represent excise duty at all. The amount, therefore, should be refunded to the appellant or deposited in the welfare fund if the department can prove that the amount has been passed on to the buyers In this case the refund claim was rejected only on the ground that the amount has been passed on to the buyers. No evidence in support of this finding was shown in the adjudication order. Besides, the adjudicating authority did not find it necessary to consider the appellant’s plea that credit notes were issued to their buyers vindicating their claims that the amount was not borne by their customers as excise duty. The appellant also issued commercial bills showing the correct amount of excise duty. Therefore, I am unable to accept the adjudicating authority’s finding that the amount was passed on to the buyers.
From the above, it is very clear that the Commissioner (Appeals) has considered all the aspects of the case-laws relied upon by the learned S.D.R. before me and has come to the conclusion that the payment of duty by the respondent company is due to a mistake, and the said mistake has resulted in excess payment of amount to the Government. Since the excess amount has not been recovered by the respondents from their purchasers, the respondents are eligible for refund of the said amount.
5. I do not find any infirmity in the Order of the Commissioner (Appeals) and the said Order deserves to be upheld. Accordingly, the appeal filed by the Revenue is dismissed. The Cross Objection filed by the Revenue also stands disposed of.
Pronounced in the open court.