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TMI Blog2013 (8) TMI 792X X X X Extracts X X X X X X X X Extracts X X X X ..... e 7(5) of Central Excise Rules, 2002, where the assessee was entitled to refund consequent to order of final assessment under sub-rule (3), subject to this sub-rule (6), provides for verification of unjust enrichment, there shall be paid an interest on such refund at the rate specified by the Central Government by Notification issued under Section 11BB of the Act from the first day of the month succeeding the month by which such refund is determined, till the date of refund. Unjust Enrichment – Opportunity to Produce evidence - Whether the AC was correct in taking a view that refund was not admissible on the ground of unjust enrichment at the time of finalization of the assessment in the absence of any evidence produced by the assessee or without giving an opportunity to the assessee - Held that:- besides the CA certificate which itself contains the relevant details, the appellant had produced direct sales register, the details of discount passed on and also an affidavit by the DGM (works). Issuance of Credit Notes - The appellants have submitted documents for finalization within three months from December 31st, 2010 and therefore the credit notes were issued much before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of direct sales at the factory gate also. At this juncture, it is necessary to take note of the fact that in the provisional assessment finalizing order, the Asst. Commissioner had observed that the appellant had not been able to show that the duty element which has been claimed as refund has not been passed on. 3. In March 2011, the appellants filed a refund claim in respect of their clearances for the month of November and December, 2010 in respect of clearances made in November 2010 and December 2010. The refund claim was returned to the appellant by the department with the remarks that the refund claim is premature since the provisional assessment was not finalized. Immediately thereafter the appellants filed all the documents for finalization of provisional assessment and in March 2011 itself and in July 2011 the Assistant Commissioner passed an order finalizing the provisional assessment in respect of depot clearances and found that the appellant was liable to pay an amount of approximately Rs.5.22 lakhs, and in respect of clearances directly at the factory gate the appellant was eligible for refund of Rs.2,04,310/-. However, he also observed simultaneously that the refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7, the Rule requires only determination of the amount payable or amount refundable and the conditions under which the duty is to be paid by the assessee or the refund is to be granted. Basically, the condition is only for the refund of duty and calculation of interest. As regards the payment of duty which arises as a result of finalization, the assessee is required to pay the same since the Rule itself says that the assessee shall be liable to pay interest on any amount payable to Central Government. As regards the refund, the provisions of 11B have to be taken note of. Section 11B(3) of Central Excise Act, 1944 reads as under: Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2). Subsection (2) provides that on receipt respect of an application made, the Assistant Commissioner has to satisfy himself that the amount is refundable and thereafter he has to make an order to pay the refund and credit the amount to the consu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before him is seen from paragraph 6 of his order. In addition to this, the appellants also submitted an affidavit by the Deputy General Manager (DGM) (Works), in which the DGM certifies that the company had raised invoices and credit notes numbering 678 during November to December 2010. Documents were prepared in ERP package and invoices and credit notes were all generated in computer. It also says that that all the documents and registers are available and gives the address of the premise. 5.1 In the case of A.K. Spintex Ltd. reported in 2009 (234) E.L.T. 41 (Raj.), the Hon ble High Court of Rajasthan observed that the presumption of unjust enrichment against an assessee is a rebuttable presumption and ceases once evidence is produced by the assessee. The observations of the Hon ble High Court in para 10 are relevant and are reproduced as under: 10. So far as Section 12B is concerned, it only places burden of proof on the assessee, by enacting the presumption, against him, and does not do anything beyond it. The burden placed on the assessee, by Sec. 12B, obviously, is a rebuttable one, and the assessee may lead evidence in rebuttal, by proving issuance of debit note and cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted by the company, the company has used the software ERP package and the law also requires the company to give the details of software used by them and the accounts of reports that are generated, etc. Both the authorities should have got the claims verified if they wanted it and rejected it on the basis of solid observations as to whether the claims made by the appellants are correct or not. It was also possible for the original authority, since the provisional assessment has been going on for more than four years, to verify that some of the dealers as to whether they have received the amount of additional discount or not. This also has not been done. Therefore, the observation of the Honble High Court of Rajastan recording rebuttable evidence is squarely applicable here. Once the evidence is produced, its authenticity should have been examined and alternative verification should have been conducted to show that claims made are wrong. Even now, both the authorities have not explained what exactly they need. During the hearing, the learned AR submitted that the CA certificate should have given the details invoice-wise. However, this is not the observations made by both the lower ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of the above, the appeal is failed on merits and also as time barred in filing of the appeal as discussed in the preceding paras. Accordingly, I pass the following order. ORDER I uphold the Order-in-Original No.2/2012-CE dated 30.1.2012 passed by the Assistant Commissioner, Customs, Central Excise Service Tax, Vijayawada Division, Vijayawada and the appeal filed by the appellant is dismissed. 6.1 As regards the provisional assessment, the order simply says that the appellant had deviated the procedure adopted by the Central Excise department and case laws does not merit for consideration. I am unable to make head or tail of this paragraph. 6.2 Secondly, there is another observation in para 11 that the Assistant Commissioner did not give any finding about the delay in filing the refund claim. In para 14, he has observed that the appeal is failed on merits as well as time bar. While stating that the appeal is time barred, absolutely there is no indication as to why the refund claim is time barred. In this case, the duty was paid in November and December 2012 and the first date to which the refund claim relates is November 1st, 2010 and admittedly the second refund claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re several orders already in favour of the appellant and one of them is by this Tribunal itself. Before parting, I have to consider the decisions cited by the learned AR since he had necessitated that the decisions placed by him should also be considered. The first decision cited by the learned AR is decision in the case of Grasim Industries Ltd. vs. CCE reported in 2011 (271) E.L.T. 164 (S.C.). I find that this decision is not applicable to the facts of this case. In that case, the Hon ble Supreme Court in para 15 made the following observations: 15. So far as the issuance of the credit note is concerned, the same was issued only on 7.8.1991 although the duty was paid on 19.7.1989 and, therefore, the credit note was issued after two years of the payment of the duty and the clearance of the goods. In this connection, Section 12 of the Central Excise Act becomes relevant which indicates that the party who is liable to pay excise duty on any goods, has to file the sales invoice and other documents relating to assessment at the time of clearance of the goods itself. Therefore, when at the time of clearance no such document was filed and what is sought to be relied upon is a document ..... X X X X Extracts X X X X X X X X Extracts X X X X
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