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TMI Blog2018 (9) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... RT] - The matter is required to be remitted back to the Original Authority and Original Authority will examine the matter and decide the same in accordance with law. Appeal allowed by way of remand. - D.B. Central/Excise Appeal No. 1 of 2016 - - - Dated:- 11-4-2018 - K.S. Jhaveri and Vijay Kumar Vyas, JJ. Shri Sameer Jain, for the Appellant. Shri Sandeep Pathak, for the Respondent. JUDGMENT By way of this appeal, the Appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has allowed the appeal of the department. 2. This Court while admitting the appeal on 21-9-2016 framed the following questions of law :- 1. Whether transfer of refund amount to the Consumer Welfare Fund in te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that after issuance of debit note and credit note, the price of goods charged by the seller, from the purchaser, is the price, initially billed, minus the amount of the debit note, and credit note, and therefore, when the debit notes and credit notes are issued and effected, which are not disputed, it cannot be assumed, that incidence of burden of excise duty has been passed on to the purchaser. 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 Section 12B, obviously, is a rebuttable one, and the assessee may lead 6 evidence in rebuttal, by proving issuance of debit note and credit note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r side, but then, that cannot be considered as a ground for interpreting Section 12B, in the manner the revenue wants us to interpret it. 17. Consequently, the question is answered, with above modification, against the revenue, and in favour of the Assessee. There is no force in the appeal, the same is dismissed. 4. In our considered opinion, the Tribunal has seriously committed an error in following the Division Bench judgment of the Tribunal in spite of the fact that Single Bench decision of the Tribunal was confirmed by the Jurisdictional High Court in A.K. Spintex Ltd. (supra). 5. In that view of the matter, the matter is required to be remitted back to the Original Authority and Original Authority will examine the matter and d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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