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TMI Blog2008 (11) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... aw: "Whether in the facts and circumstances of the case, the Tribunal is right in law in allowing the refund where the incidence of duty had been passed onto the customers initially and subsequently the debit notes were issued by the suppliers of raw material but not credited in the accounts of the customers by the assessee?" 3. The necessary facts, giving rise to the controversy are, that the assessee processes man-made fabrics. For that they receive grey unprocessed fabric, from the suppliers, and in terms of Notification dated 1.3.2001, they got deemed CENVAT Credit in respect of declared inputs, used in the manufacture of processed fabrics. The prevalent rate of deemed credit was 45% of the duty, paid on the processed fabric. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h too was disposed, relying upon the judgment of the Tribunal in CCE Madras v. Addision Co. reported in 1997 (93) E.L.T. 429, wherein it was held, that if after the date of payment of duty, any payments are made, same cannot be taken cognizance of for the purpose of Section 11B. The assessee carried the matter, by further appeal, before the Tribunal, relying upon larger bench judgment of the Tribunal, in S. Kumar Ltd. v. CCE, Indore 2003 (153) E.L.T. 217, wherein it was noticed, that since there is no dispute on the fact, that this amount of duty has not been collected by the appellants, it is not hit by the principle of unjust enrichment. The learned Tribunal found, that there is substantial force in submission of the learned cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of debit note and credit note, in the commercial transactions is as good as cash passing, with the result, that burden of excise duty, which was passed on by the assessee, to its customers, was immediately reversed back, and came to be suffered by the assessee only, as a result of which, there was issuance of debit notes and credit notes, and therefore, no interference is required to be made in the order of the learned Tribunal. 7. After going through the judgments, at the outset, we may observe, that the question is framed on basic misconception, rather on assumption, which is not borne out from the record, in as much as, the question apprehends error on the part of the Tribunal, in allowing refund, where incidence of duty has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the goods passes to the purchaser, and seller becomes entitled to the price, and once the debit note is issued by the purchaser, and corresponding credit note is issued by the seller, the price of the goods stand reduced to the extent of debit note and credit note, meaning thereby, 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 burde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate person, who has borne the burden. Obviously, if it is established by the assessee, that the burden has not been passed on, or has been appropriately reversed, the ultimate person, who has suffered the burden, would be assessee himself. 13. It is faced with this situation, that the submission made by the learned counsel for the revenue, was, that in the scheme of things, when the goods are sold or cleared for sale, it has to be assumed, that the burden has been passed on to the purchaser, and this process of issuance of debit note or credit note, cannot have the effect of reversal of passing of the burden, as it is only a paper transaction, to get undue benefit by the assessee. 14. In our view, the stand cannot be accepted. Pass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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