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TMI Blog2012 (12) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... declining to refund the sum of Rs. 62,20,506/- on account of excess excise duty paid, on the premise that the appellant was a job worker and vide the invoices issued he had passed on the duty incidence to the principal M/s. BSL Limited. It is pertinent to note that this was done despite of the fact that the Adjudicating Authority had sanctioned the refund claim of Rs. 62,20,506/- and he took the view that refund to the appellant would amount to unjust enrichment. 2. Briefly stated undisputed facts of the case are that the appellant was doing job work i.e. manufacture of processed manmade fabrics falling under Chapters 54 and 55 of Central Excise Tariff Act, 1985 as an independent processor on behalf of the principal M/s. BSL Limited. At the relevant time during the period from March 2001 to February 2002, on incorrect interpretation of the taw, the department was of the view that appellant should pay excise duty in respect of the goods manufactured on job work basis under Rule 8 of Central Excise Valuation Rules, 2000 on 115% of cost of production. Though the appellant did not agree to this proposition, yet under the pressure of the department, he paid excise duty as per Rule 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund, pursuant to 11C Notification, the appellant in that case, after a gap of two years submitted credit notes issued by him in favour of the buyers and claimed that there was no unjust enrichment. It is submitted that the facts of this case are entirely different for the reason that in this case, though invoices for the job work goods showing the excise duty incidence were issued to M/s. BSL Limited, but M/s. BSL Limited refused to pay the excess excise duty, which resulted because of the valuation done in accordance with Rule 8 of the Valuation Rules. In support of this contention, he has drawn our attention to a number of letters written month by month by M/s. BSL Limited refusing to pay the excess excise duty to the appellant for which the refund is now being claimed and they only paid the excise duty calculated as per the principle laid down in M/s. Ujjagar Prints Ltd. (supra). It is submitted that since the excess excise duty was never paid by M/s. BSL Limited to the appellant, it cannot be said that it was passed on to them by the appellant. Therefore, the decision of Adjudicating Authority and the Appellate Authority that refund of the amount to the appellant would amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant during the period of dispute in respect of the fabrics processed on job-work basis for their customers out of the grey fabrics supplied by them, had paid duty on 115% of the cost of production, while they were required to pay duty on the value determined on the basis of Hon ble Supreme Court s judgment in case of Ujjagar Prints Ltd. (supra) i.e. cost of grey fabrics in the hand of the job worker plus job charges including job-worker s profit; and (b) in the invoices issued by the appellant to their customers including M/s. BSL, they had shown the duty actually paid i.e. duty paid on 115% of the cost of production. The disputed refund claim is in respect of clearances to M/s. BSL. The appellant s claim is that while in the invoice issued to M/s. BSL, the excise duty actually paid i.e. duty on 115% of the cost of production had been mentioned, M/s. BSL had not paid the full amount of duty to them but had reimbursed only the duty on the cost of production. The appellant, thus, claim that the incidence of duty whose refund is claimed by them, has been borne by them and, hence, the same is not hit by the bar of unjust enrichment in Section 11B of the Act. The Departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the presumption against him, and does not do anything beyond it. The burden placed on the assessee, by Section 12B, obviously, is a rebuttable one and the assessee may lead the evidence in rebuttal by proving issuance of debit note and credit note. Likewise there may be cases, where purchaser may refund the amount to seller, in cash, or may issue some bank note, like cheque, or draft, for refund of the amount or there may be case, when goods are sold on credit, and while making payment of price of the goods, the purchaser may debit the amount and, thus, pay less amount to the seller, and if all those facts are known and proved, the burden placed on the assessee, by Section 12B, would shift on the revenue, then it is required for revenue to prove, either that the theory projected by the assessee is fake and false, or that the burden has actually been passed on. Once the assessee leads reliable evidence about his having not passed the burden on the purchaser, and the revenue fails to rebut that evidence, the presumption enacted by Section 12B stands sufficiently rebutted, and cannot survive ad-infinitum . 8.2 Hon ble Madras High Court in case of Addison Co. v. CCE, Madras (supra ..... 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