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TMI Blog2023 (12) TMI 564X X X X Extracts X X X X X X X X Extracts X X X X ..... ru Power Transmission Ltd. without payment of duty availing the benefit under Notification No. 108/95-CE dated 28.8.1995 against the Project Authority Certificate No. 33 dated 23.5.2008. Due to certain delay caused in receiving the amended certificate indicating addition quantities, they had paid excise duty to the tune of Rs.6,08,053/- during November 2010 on five consignments made in respect of the additional quantities, though the date of clearance was after the date of amendment certificate. The appellant filed refund claim in June 2011 claiming refund of the excess duty paid. After due process of law, the original authority vide Order in Original dated 13.7.2012 rejected the refund. The appellant filed appeal before Commissioner (Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ru Power Transmission Ltd. As per section 11B(2)(d) of Central Excise Act, 1944, appellant is eligible for refund if the amount of duty and interest paid by the manufacturer has not been passed to any other person. In this case, there is no doubt that the incidence of duty has been passed on to the appellant's customer. The issue of credit note by the appellant at a later date to the customer is a post-clearance activity and is not relevant for the sanction of refund in terms of section 11B. Sections of the Act have to be read strictly and no redundancy can be read into it. This being so, the appeal may be rejected. He relied the decision of the Tribunal in the case of CCE, Hyderabad Vs. TFL Quiln India Pvt. Ltd. - 2013 (294) ELT 421 (Tri. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing a credit note so as not to attract the bar of unjust enrichment. I find that the issue has been examined and decided by a Coordinate Bench of this Tribunal in its decision pertaining to Commissioner of Central Excise Raipur Vs IBP Ltd. [2013 (288) ELT 385 (Tri.-Del.)]. The said judgment is based on an order affirmed by the Hon'ble Supreme Court and would prevail over the judgment cited by Revenue. The relevant portion is extracted below: "7. Thus what the Hon'ble Rajasthan High Court in the above judgment has held, is that while in terms of the provision of Section 12B of the Central Excise Act, 1944, once goods are cleared on payment of duty under invoice which mentions some amount as duty, it is presumed that the incidence of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal position which emerges is that though Section 12B provides for the presumption that once the goods have been cleared on payment of duty under invoice which mentions some amount charged as duty, it shall be presumed that the incidence of duty has been fully passed on by the assessee to the customer, this is a rebuttable presumption and if the assessee produces evidence showing that by the issue of credit note to the customer subsequently or by charging lesser price in respect of subsequent clearances, the incidence of higher duty earlier charged have been neutralized, burden would then shifted to the Revenue to prove that the claim of the assessee is not correct and if the assessee's claim is found to be correct, the refund claim would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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