Per Justice U.L. Bhat :

Appellant is absent in spite of notice of hearing, but has sent a request for decision of the appeal on merits. We have heard Shri K.Srivastava, SDR and perused the papers.

2. The dispute arose in relation to a refund claim filed by the appellant in respect of duty paid on the element of cash discount and special discount. The total amount of discount is stated to be Rs. 2,17,228.30. The Assistant Collector held that duty on the discount of Rs. 1,03,624.22 was knowingly and intentionally paid, therefore, cannot be refunded. In regard to cash discount of Rs. 24, 589.26, which was offered but not actually received by the buyer, the Assistant Collector held that refund was not admissible. In regard to sum of Rs. 19.95 covered by credit note, the Assistant Collector held that this was target discount and the achievement of the target would not be known at the time of the clearance. Accordingly, the Assistant Collector ordered refund only of the balance amount. This order having been confirmed by the Collector (Appeals), the present appeal has been filed.

3. The lower authorities were in error in rejecting a part of the claim on the ground that duty was paid knowingly, whether duty was paid knowingly or not, if the claim is made within the period allowed by law, refund has to be ordered. So far as a part of the cash discount not actually received by the buyer is concerned, the Department has no case that the scheme of discount was not known to the trade at the time of clearance and not allowable uniformly. Therefore, this amount also should have been considered admissible. So far as target discount is concerned, Department has no case that the discount was not known to the buyers at the time of clearance or was not offered uniformly to all the buyers. Therefore, the ground argued by the lower authorities for rejecting the refund claim is not sustainable.

4. However, the matter has to be examined in the light of Section 11B of the Central Excises Act, 1944 and for this purpose we set aside the impugned order and remand the case to the jurisdictional adjudicating authority for decision afresh after giving the appellant an opportunity of hearing. Appeal is allowed.