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TMI Blog2011 (10) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... bed. The application shall be accompanied by such documentary or other evidence including the documents referred to in Section 12A as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from or paid by him and the incidence of such duty had not been passed on by him to any other person. The claim for refund would arise only if the incidence of duty had not been passed on. As the onus is on the assessee to prove that the incidence of duty had not been passed on to the customers, the question of claim of refund could not be entertained. For that reason, both the Commissioner of Central Excise (Appeals) and the CESTAT came to the conclusion that the application u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) Whether Modvat credit and refund thereof will be governed by the provisions of Section 11B of the Central Excise Act, 1944? (4) Whether the principle of unjust enrichment under Section 11B of the Central Excise Act, 1944 will apply for excess debit of Modvat credit on inputs/raw materials (components) diverted to duty paid spares godown (DPSG)? (5) Whether refund of wrong/excess debit made in RG-23A Part II or RG-23C Part II will be governed by Section 11B of the Central Excise Act, 1944 or whether in such a case an assessee is entitled to take suo motu credit? (6) Whether the debits and credits in RG-23A or C as the case may be are only matter of adjustments and not duty for the purpose of Section 11A and Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, had gone into two issues viz., (i) whether the assessee had submitted any documentary evidence to establish that the incidence of duty for which refund was claimed had not been passed on to any other person and (ii) whether such documents were submitted within the period of six months from the relevant date. Both the points were negatived by the Assistant Commissioner. The Commissioner of Central Excise (Appeals), Trichy also dismissed the appeal except by directing that the Assistant Commissioner should have sanctioned the claim and should have credited the same to the Consumer Welfare Fund, which order was also confirmed by the Customs, Excise and Service Tax Appellate Tribunal (in short, the CESTAT ). 3. The bone of challenge in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. By that provision, for claim of refund of duty, the claimant, namely, the assesee must comply with two conditions. He should make an application within a period of six months from the relevant date and the burden is on him to prove the claim of refund by producing necessary documents. Only in the event of such compliance, the question as to whether the assessee is entitled to the benefit of the Notification, dated 29-6-1995 for reversal of the Modvat credit to the extent availed earlier would arise. In the event the assessee is unable to satisfy the above, no grievance can be made as to the failure on the part of the CESTAT to consider the applicability of the subsequent notification. The Assistant Commissioner of Central Excise, while ..... X X X X Extracts X X X X X X X X Extracts X X X X
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