Judgment :- 1. This appeal is filed by the revenue being aggrieved by the order passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore (hereinafter called the ‘CESTAT’) in Appeal No. Excise/523/2004 dated 1-12-2006 wherein the appeal filed by the assessee has been allowed with consequential benefits. 2. The material facts of the case leading up to this appeal are as follows: The assessee filed an application for refund of Rs.80,161/- on 17-5-2002 claiming that the assessee is an SSI unit and was availing notification No.9/2001 CE dated 1-3-2001 and as per the said notification, the applicable rate of duty up to Rs.1 Crore value of clearances is 60% of normal rate of duty, ie., 9.6% advance. But instead of paying duty at this rate, the claimant has paid duty at 12.8% advance for the period from 31-8-2001 to 12-12-2001 and the excess payment of duty amounting to Rs.80,161/- was paid under mistaken impression that the duty has to be paid at 80% of normal rate after crossing the turnover or Rs.50 lakhs. It is the further case of the assessee that the clearances for which the assessee paid excess duty were consigned to M/s.Sunil Industries, Kolhapur. The jurisdictional Superintendant noticed the excess payment of duty which had resulted in excess availment of CENVAT credit of Rs.80,161/- on 10-1-2002. Simultaneously, the consignee issued a debit note and the amount was credited to the consignee’s account by the claimant on 10-1-2002 and therefore, the assessee has sought for refund. The assessing officer after considering the contentions of the assessee and the revenue held that excess duty paid amounting to Rs.80,161/- was reversed by the consignee and also the said amount was credited to the consignee’s account by the claimant and having regard to the material that is produced, he agreed with the contention of the assessee that the entire excess duty paid amounting to Rs.80,161/- was borne by them and therefore was of the view that the excess duty paid need not be retained by the department and accordingly, sanctioned refund of Rs.80,161/- by order dated 17-7-2002. Being aggrieved by the said order, the revenue preferred an appeal No.96/2003 BM(D) before the Deputy Commissioner of Central Excise (Appeals), Mangalore. Being aggrieved by the said order, the revenue preferred an appeal No.96/2003 BM(D) before the Deputy Commissioner of Central Excise (Appeals), Mangalore. The first appellate authority, by order dated 23-2-2004 held that in view of the decision of the CESTAT in the case of S. Kumar’s Limited (2003 (55) RLT 399), provisions of unjust enrichment are attracted in case of post clearance adjustments and refund is not permissible and accordingly, allowed the appeal and set aside the order passed by the assessing officer. Being aggrieved by the same, the assessee preferred an appeal before the CESTAT in E/523/2004. The said appeal was clubbed with other connected appeals and by order dated 1-12-2006, the CESTAT held that in view of the decision in the case of M/s. Gokak Mills Ltd in the connected appeal, set aside the order passed by the first appellate authority and restored the order passed by the assessing officer. Being aggrieved by the same, this appeal is filed by the revenue contending that the order of the first appellate authority was justified and the CESTAT was not justified in reversing the order passed by the first appellate authority. 3. The appeal was admitted for determination of the following substantial question of law: “Whether the transaction is on provisionality and amounts are settled in the end and higher payment made by the assessee and then in that case whether the assessee is eligible for refund? 4. We have heard the learned counsel appearing for the revenue-appellant and the learned counsel appearing for the assessee-respondent. 5. The learned counsel appearing for the revenue has relied upon the decision of the Hon’ble Supreme Court in the case of MRF LTD vs COLLECTOR OF CENTRAL EXCISE, MADRAS ( 1997 (92) E.L.T 309 (S.C)) and submitted that once the duty is to be paid as on the date of clearance of the goods and subsequent variation in the price, would not entitle the assessee to claim refund. The Hon’ble Supreme Court has observed as follows: “Once the assessee has cleared the goods on the classification and price indicated by him at the time of the removal of the goods from the factory gate, the assessee becomes liable to payment of duty on that date and time and subsequent reduction in prices for whatever reason cannot be a matter of concern to the Central Excise Department insofar as the liability to payment of excise duty was concerned. Therefore, subsequent fluctuation in the prices of the commodity can have no relevance whatsoever so far as the liability to pay excise duty is concerned, unless it is shown that there was some agreement in this behalf with the Government and the latter had agreed to refund the excise duty to the extent of the reduced price.” The learned counsel appearing for the revenue submits that in view of the aforesaid decision, the appeal may be allowed and the order passed by the CESTAT may be set aside. 6. The learned counsel appearing for the respondent submitted that the MRF LTD case cited by the counsel appearing for the revenue is not applicable to the facts of this case as there was payment of duty after the goods were cleared whereas in the present case, there is a mistake in making payment of duty at the rate of 12.8% where the assessee was to be paid at 9.6% only and the excess amount paid has been credited to the account of the consignee and the entire burden is borne by the assessee and the case of MRF Ltd. has been explained in the subsequent decision of the Hon’ble Supreme Court in COMMISSIONER OF CENTRAL EXCISE vs INTERNATIONAL AUTO LTD ( 2010 (250) ELT 3 (S.C)) wherein the Hon’ble Supreme Court has observed as follows: “In our view, with the entire change in the Scheme of recovery of duty under the Act, particularly after insertion of Act 14 of 2001 and Act 32 of 2003, the judgment of this Court in the case of M.R.F. Limited [supra] would not apply. That judgment was on interpretation of Section 11B of the Act, which concerns claim for refund of duty by the assessee. That judgment was in the context of the price list approved on 14th May, 1983. That judgment was on interpretation of Section 11B of the Act, which concerns claim for refund of duty by the assessee. That judgment was in the context of the price list approved on 14th May, 1983. In that case, assessee had made a claim for refund of excise duty on the differential between the price on the date of removal and the reduced price at which tyres were sold. The price was approved by the Government. In that case, the assessee submitted that its price list was approved by the Government on 14th May, 1983, but subsequent thereto, on account of consumer resistance, the Government of India directed the assessee to roll back the prices to pre-14th May, 1983 level and on that account, price differential arose on the basis of which the assessee claimed refund of excise duty which stood rejected by this Court on the ground that once the assessee had cleared the goods on classification, the assessee became liable to payment of duty on the date of removal and subsequent reduction in the prices for whatever reason cannot be made a matter of concern to the Department insofar as the liability to pay excise duty was concerned.” He has also relied upon the decision of the Division Bench of this Court in M/S. SUDHIR PAPERS LIMITED vs THE COMMISSIONER OF CENTRAL EXCISE (CEA NO.30/2009, disposed of on 28-3-2011) wherein in identical circumstances where excise duty had been paid and amount was credited to the consignee and duty was borne by the assessee only, the refund was ordered holding that conditions of Section 11-B of the Act have been satisfied. 7. We have given careful consideration to the contentions of learned counsel appearing for the parties and scrutinized the material on record. 8. The material on record would clearly show that the application was filed by the assessee under Section 11-B of the Act for refund of the excess amount of duty paid in a sum of Rs.80,161/- under the mistaken notion that the actual duty to be paid was 12.8% whereas, in fact, quantum of excess duty liable to be paid by the assessee was only 9.6% from 31-8-2011 to 12-12-2001. Further, excess duty paid has been collected and credited to the consignee and the entire burden of duty has been borne by the assessee and has not been passed on to the consignee. Further, excess duty paid has been collected and credited to the consignee and the entire burden of duty has been borne by the assessee and has not been passed on to the consignee. Therefore, we hold that conditions of Section 11-B of the Act have been satisfied. 9. On similarfacts, in CEA 30/2009, disposed of on 28-3-2011 referred to above, the Division Bench of this Court has held that if credit notes are raised and benefit is passed on to the customer, thus, not passing on the burden of excise duty, the assessee is entitled to refund of the same. Therefore, having regard to the above said finding and following the judgment in CEA No.30/2009, disposed of on 28-3-2011, we answer the substantial question of law against the revenue and in favour of the assessee. 10. Accordingly, we pass the following order: ORDER The appeal is dismissed.