9911796707
TMI Blog2010 (11) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... al amount of duty of ₹ 1,07,98,905/- were held to be neither barred by limitation nor by unjust enrichment. The assessee's appeal is against the rejection of the refund claim of ₹ 70,02,051/- for the period October to December 1996, whereas the Revenue's appeal is against grant of refund of duty of ₹ 1,07,98,905/- for the period January to June 1997. We have examined the records and heard both sides. The details of the refund claims in question are as follows: Sr No Month/period against which refund claim filed Date of filing refund claim Amount of duty claimed for refund 1 Oct-96 22.8.97 22,95,610/- 2 Nov-96 22.8.97 19,09,709/- 3 Dec-96 21.7.97 27,96,732/- 70,02,051 1 Jun-97 21.7.97 22,15,656/- 2 Fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s appeal is therefore dismissed. 3. In the Revenues 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 ₹ 1,20,11,518/- out of which a claim of ₹ 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 ₹ 12,12,613/-. The rest of the refund claim amounting to ₹ 1,07,98,905/- was held to be neither barred by limitation, nor by unjust enrichment. In the Revenue's appeal, the Appellate Commissioners order granting this refund of duty to the assessee has been challenged on the gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers at the stage of clearance of the goods from the depot is not in dispute. Apparently, the differential discount was given by the assessee to their buyers by way of recovery of differential price from the latter through credit notes. These basic facts are not in dispute. 4. The learned consultant for the Revenue has also made an endeavour to show that the refund claim by the assessee was not even admissible on merits. In this connection, he has submitted that the payment made on the goods at the factory gate was based on the assessable value determined on the basis of the price declared under Rule 173C (3) of the Central Excise Rules, 1944. It has been submitted that it was long after clearance of the goods from the depot that the factum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustries vs Commissioner 2003 (153) ELT 694 (Tri-LB); (iii) Sangam Processors (Bhilwara) Ltd vs Commissioner 1994 (71) ELT 989 (T). In the case of S. Kumars Ltd (supra), the Tribunal's Larger Bench upheld the ratio of the decision in Sangam Processors (Bhilwara) Ltd which was found to have been affirmed by the Honble Supreme Court 1994 (70) ELT A-182. The Larger Bench held that issuance of a credit note to the buyer after clearance of the goods on payment of duty was not enough to get over the bar of unjust enrichment. The view taken by the Larger Bench was that an assessee claiming refund of duty under Section 11B of the Central Excise Act should establish that the incidence of duty had not been passed on to the buyer at the time of cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho had paid the duty of excise on any goods under the Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of the duty to the buyer of the goods. The statutory document which transfers the burden of duty from the assessee to a buyer is an invoice issued by the former to the latter. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them to their buyers for taking back any duty burden. We must, therefore, hold that the statutory presumption under Section 12B of the Act is yet to be rebutted by the assessee. In this scenario, the fact remains that the entire duty burden on the goods cleared from the assessee's depot to their buyers during the period January to June 1997 passed on to the buyers with the result that the statutory presumption under Section12B of the Act comes true. As rightly held by the learned Commissioner (Appeals), the refund claims aggregating to ₹ 1,07,98,905/- for the period from 22.1.1997 to 30.6.1997 are barred by unjust enrichment. The prayer in the Revenues appeal is, therefore, granted and the appeal is allowed. 7. Appeal E/3108/06 fil ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
