ORDER
S.L. Peeran, Member (J)
1. The appellants are aggrieved with the rejection of their refund claim on the ground that the incidence of duty has been passed on to the buyers and the burden of proof has not been discharged by the assessee.
2. Heard both sides and perused the records. Ld. SDR refers to the para 5 of the order wherein the judgment of the Larger Bench in the case of Sangam Processors (Bhilwara) Ltd. v. CCE, 1994 (71) ELT 989 has been preferred upheld by the Larger Bench in the case of S. Kumar’s Ltd. v. CCE, Indore, 2003 (88) ECC 516 (TRI.LB) : 2003 (153) ELT 217 (TRI.LB). He also relies on the another Larger Bench decision rendered in the case of Grasim Industries (Chemical Division) v. CCE, Bhopal, 2003 (153) ELT 694 (Tri-LB). As the issue is covered in favour of the Revenue the appeal is required to be rejected. Ld. counsel submitted that mere the issue of credit note by them to the buyer by itself is not a proof that the incidence of duty have been passed on to the buyer. The Ld. Counsel submits that the buyer was a 100% EOU and had sent CT 3 Certificate for the clearance of the said goods without payment of duty. Therefore, there is no passing of duty to the buyer in the matter.
3. Heard both sides. On a careful consideration I notice that the Commissioner (Appeals) has already dealt with the points in great detail in the light of the judgments rendered by the Larger Bench in the case of S. Kumar’s Ltd. v. CCE, Indore (supra) and that Grasim Ind. (Chemical Divin) v. CCE, Bhopal (supra) the Tribunal has upheld the Larger Bench earlier view expressed in the case of Sangam Processors (Bhilwara) Ltd. v. CCE (supra) which has been upheld by the Apex Court judgment. In view of the Larger Bench judgment the appellants do not have a case. There is no merit in the appeal and the same is rejected following the ratio of the Larger Bench decisions referred to above.