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TMI Blog2010 (11) TMI 300X X X X Extracts X X X X X X X X Extracts X X X X ..... sued to them. However, these invoices did not separately indicate the amount of duty collected from the buyers - The burden was all the more for the assessee to establish that the burden of duty had not been passed on to the buyers - The learned counsel has submitted that (i)the buyers were also aware of the higher discount before the clearance of the goods from the depot (ii)such discount was actually given to the buyers by way of recovery of a part of the price by the assessee from the buyers (iii)the assessee issued credit notes to their buyers for taking back the differential duty burden - The assessee has not challenged the finding of the lower appellate authority that there is no evidence of any such credit notes have been issued by them to their buyers for taking back any duty burden - Thus, refund claims are barred by unjust enrichment. X X X X Extracts X X X X X X X X Extracts X X X X ..... 2-8-1997 and 21-7-1997 beyond six months from the relevant dates cannot be faulted. The Assessee's appeal is therefore dismissed. 3. In the Revenue's appeal, the subject-matter is a set of refund claims which were filed on 21-7-1997 for the period January to June, 1997. The total amount of duty claimed as refund was Rs. 1,20,11,518/- out of which a claim of Rs. 12,12,613/- for the period from 1-1-1997 to 21-1-1997 was held to be time-barred. The assessee has not challenged the rejection of refund claim, as time-barred, of the said amount of Rs. 12,12,613/-. The rest of the refund claim amounting to Rs. 1,07,98,905/- was held to be neither barred by limitation, nor by unjust enrichment. In the Revenue's appeal, the Appellate Commissioner's order granting this refund of duty to the assessee has been challenged on the ground of unjust enrichment. There is no challenge to the Appellate Commissioner's decision that the claim is not time-barred. It is contended that, once the duty was paid at the time of clearance of the goods to the buyers the incidence of duty passed on to them and any subsequent action of the assessee, like issue of credit notes to the buyers, would not alter th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise Act was concerned. The learned Commissioner (Appeals) already held that Section 11B of the Act was independent of Rule 173C. According to the learned Commissioner (Appeals), the assessee could claim refund of duty under Section 11B of the Act notwithstanding anything contained in Rule 173C. It is submitted that any issue of credit notes by the assessee to their buyers subsequent to clearance of the goods would not alter the fact that, on the date of clearance of the goods, the burden of duty was actually passed on to the buyers. In this connection, we note that the Revenue, in their appeal, has pleaded that the assessee issued such credit notes subsequent to the clearance of the goods. The case of the Revenue is that this action of the assessee would not help them to get over the bar of unjust enrichment. In this connection, the learned consultant has relied on the following decisions : (i) S. Kumars Ltd. v. Commissioner - 2003 (153) E.L.T. 217 (Tri.-LB.); (ii) Grasim Industries v. Commissioner - 2003 (153) E.L.T. 694 (Tri.-LB.); (iii) Sangam Processors (Bhilwara) Ltd. v. Commissioner - 1994 (71) E.L.T. 989 (T.). In the case of S. Kumars Ltd. (supra), the Tribunal's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. Section 12A of the Act, which is one of the provisions having a direct bearing on refund claims filed under Section 11B, reads as under : "SECTION 12A. Price of goods to indicate the amount of duty paid thereon. -- Notwithstanding anything contained in this Act or any other law for the time being in force, every person who is liable to pay duty of excise on any goods shall, at the time of clearance of the goods, prominently indicate in all the documents relating to assessment, sales invoice, and other like documents, the amount of such duty which will form part of the price at which such goods are to be sold." The above provision obligates the assessee to prominently indicate in all documents relating to assessment and related statutory documents including invoice the amount of duty forming part of the price at which the goods are sold. Admittedly, in the present case, the amount of duty was not separately indicated in the invoices issued by the assessee from their depot. In the circumstances, the burden was all the more for the assessee to establish that the burden of duty had not been passed on to the buyers. The assessee had dismally failed to discharge this burden. The l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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