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TMI Blog2012 (5) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... al and subsequently finalised. The issue as to whether burden of duty has been passed on to the customers or not is not relevant at the time of finalisation of assessment. The said issue essentially arises at the time of claim of refund. Question of refund can arise only after finalising the assessment, appeals fail and are hereby dismissed - E/1413-1414/2005 - 488-489/2011-EX(PB), - Dated:- 7-6-2011 - Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. Final Order Nos. Shri K.K. Anand, Advocate, for the Appellant. Shri V. Choudhary, DR, for the Respondent. [Order per : Justice R.M.S. Khadeparkar, President]. Heard the learned advocate for the appellants and DR for the respondent. Since common questions of law and facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 22nd May 2001. The Commissioner (Appeals) by its order dated November 2003 allowed the appeals filed by the department and disallowed the refund claim. The matter was then carried in appeal by the appellants before this Tribunal, which was disposed of by order dated 27th October 2004 remanding the matter to the Commissioner (Appeals) as stated above. 4. The learned advocate for the appellants while assailing the impugned order submitted that the Commissioner (Appeals) erred in rejecting refund claim ignoring the documentary evidence available on the record. According to learned advocate the credit notes issued from time to time and reflected in the records placed before the authority clearly revealed that the discount given by the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onding invoice while contending that the invoice discloses total price charged for the product cleared and the credit note nowhere discloses inclusion of duty element therein. 6. It is not in dispute nor can be disputed that the remand of the matter to the Commissioner (Appeals) by the Tribunal under its order dated 27th October 2004 was for a limited purpose and that was to ascertain whether the appelants are able to establish that they had not passed over the burden of duty to their customers. While limiting the scope of inquiry before the Commissioner (Appeals) in that regard, the Tribunal had specifically reminded that the burden of proving the said issue was squarely upon the appellants in terms of Section 11B of the said Act. 7. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respective of tine fact that credit notes were issued at tine subsequent stages. 8. Plain reading of the above findings would disclose that there is hardly any scope for interference therein by this Tribunal. The Commissioner (Appeals) has not only considered the materials available on record, but has also applied its mind to the facts of the case by taking into consideration the law applicable thereto, Including the relevant decisions on the connected issues. 9. The learned advocate for the appellants had vigorously contended that practice of issuing credit notes subsequent to the receipt of the less amount with reference to the invoices issued by the appellants clearly established that the credit was essentially given in relation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught to be distinguished on the ground that those were the decisions wherein the entire payment in accordance with the invoices was received after the issuance of credit note, whereas in case of appellants, the credit notes were issued to square up the balance amount which remained unpaid out of the invoice amount already partially paid. Besides it is also said that in the case in hand, the assessments were provisional and subsequently finalised. The issue as to whether burden of duty has been passed on to the customers or not is not relevant at the time of finalisation of assessment. The said issue essentially arises at the time of claim of refund. Question of refund can arise only after finalising the assessment. In fact this aspect has b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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