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TMI Blog2009 (3) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by Jaipur Vidyut Vitran Nigam Limited (JVVNL). The price variation could be positive or negative. The supply of conductor was made during the period from June 2005 to August 2005 and during this period, the goods were cleared by the Appellant on payment of duty, at the prices mentioned in the contract. However, subsequent to the supply of the goods the, buyers AVVNL and JVVNL decreased the price and adjusted the excess amount paid from the payment for the subsequent supplies. The Appellant filed a refund claim on 22-6-06 for refund of amount of excess paid duty of Rs. 75,526/- and the Assistant Commissioner vide Order-in-Original dated 20th September 2006 rejected the refund claim for an amount of Rs. 38,745/- as time barred and sanctioned the claim for the balance amount of Rs. 36,192/- but credited the same to the consumer welfare fund in terms of the provisions of Section 11B(2) of Central Excise Act on the ground that this amount is hit by unjust enrichment. The Appeal filed by the Appellant before the Commissioner (Appeals) was dismissed vide the impugned order-in-appeal No. 283/GRM/CE/JPR-I/2006 dated 28-11-06. It is against this order that the present appeal has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat on account of negative price variation, short payment to the appellant vis- -vis the billed amount was Rs. 5,59,457/- which included the Excise Duty of Rs. 75,474/-. Both these letters confirmed that the Appellant s firm was paid after considering the negative price variation and not as per the original sale bills. In view of this, since the incidence of excess duty paid has not been passed on by the Appellant to AVVNL and JVVNL, the Assistant Commissioner s order crediting the amount of Rs. 36,171/- to Consumer Welfare Fund on the ground of unjust enrichment is incorrect. In this regard, the judgment from Hon ble Rajasthan High Court in case of Union of India v. A.K. Spintex Ltd. reported in 2009 (234) E.L.T. 41 (Raj.) was cited, wherein it was held once the debit note is issued by the purchaser and corresponding credit note has been issued by the seller, the price of the goods stands reduced to the extent of debit note/credit note and the price of the goods charged by the seller by the purchaser becomes the price initially billed minus the amount of debit note/credit note issued and in such a situation, it cannot be assumed that the incidence of the burden of Excise Duty has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding provisional assessments, the assessments cannot be treated as provisional assessments under Rule 9B of Erstwhile Central Excise Rules or Rule 7 of Central Excise Rules, 2002, and accordingly the limitation period for claiming refund under Section 11B would apply. Besides this, the judgments of the Tribunal in the case of CCE, Meerut-II v. J.C.L. International reported in 2002 (150) E.L.T. 261 (Tri.-Del.) and CCE, Nagpur v. Maharashtra Cylinder Ltd. reported in 2003 (157) E.L.T. 688 (Tri.-Bom.) were cited, wherein it was held by the Tribunal that in absence of any formal order under Rule 9B of the Central Excise Rules, the assessment cannot be treated as provisional assessment, even if there is price variation clause in the supply order against which the clearances of the goods have been made. (2) On the point of unjust enrichment, it was pleaded that once the incidence of duty has been passed by an assessee to his customer, subsequent issue of debit note by the Customer and credit note by the assessee would not make any difference and that the refund claim would be hit by the principle of unjust enrichment. In this regard, reliance was placed on Tribunal s judgment in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the cases of Telephone Cables Ltd. v. CCE, Chandigarh (supra), the Government s SLP which has been dismissed by the Hon ble Supreme Court and also the judgments of the Tribunal in the cases of CCE, Tirupati v. Kurool Cylinders Pvt. Ltd. (supra) and Rajasthan Electronics Instruments Ltd. v. CCE, Jaipur (supra). In all these cases, the Tribunal has held that when a sale contract has price variation clause, the assessment in respect of clearances made against such sale contracts are to be treated as provisional even though procedure prescribed under Rule 9B of Central Excise Rule 1944 was not followed. Though against the Tribunal s judgment in the case of Telephone Cables Ltd. v. CCE, Chandigarh (supra), the Union of India filed an SLP before Hon ble Supreme Court, it is seen that SLP was dismissed as withdrawn and thus, the dismissal of the SLP by Hon ble Supreme Court was not on merit or by a detailed order. As against this, Hon ble Supreme Court in the case of CCE, Calcutta v. Hindustan National Glass and Industries Ltd. (supra) has held that to establish that the clearances were on provisional basis an order under Rule 9B of the Erstwhile Central Excise Rules, 1944 and the pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at later date only, after reducing the original rate and the appellant did not receive the higher price alongwith the duty paid by them, the appellant have not enriched unjudicially and the bar of unjust enrichment would not apply. The appellant have also cited the judgment of Hon ble Rajasthan High Court in the case of U.O.I. v. A.K. Spintex Ltd. (supra), wherein Hon ble High Court has held that the bar of unjust enrichment would not apply even when initially the incidence of higher duty has been passed on, if subsequent to the clearance, the customers have raised debit notes and the corresponding credit notes has been raised by the assessee. Hon ble Rajasthan High Court in this case has emphasized that while Section 12B of the Central Excise Act places the burden of proving that the incidence of duty has not been passed on to the customers, on the assessee, the burden placed on the assessee by this Section is a rebuttable one and if the assessee leads the evidence of rebuttal by the issuance of debit notes by the customers and credit notes by him or refund of the excess amount of duty in cash etc. to the customer, the burden would shift on the Revenue, who in such a situation wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey had collected duty from the Customers at the time of clearance and issue of credit notes would not bring them within the ambit of sub-Section 2 of Section 11C. It is this order of the Commissioner (Appeal) which was upheld by the Tribunal and the Civil Appeal against this order of the Tribunal was dismissed by the Hon ble Supreme Court. Thus in the case of M/s. Sangam Processors (Bhilwara) Ltd., other than their claim of having issued credit notes to the customers, made at a much later stage, there was no evidence that they had actually not passed on the incidence of duty whose refund was being claimed, while under Section 12B, the burden of proving this was on them. Hon ble Supreme Court s judgment has to be seen in this background. However, in the present case, because of price variation in the clause in the supply order, though after sale of the goods payments on provisional basis were made, subsequently when the final prices were decided, in case of negative price variation, the excess amount was deducted while making payment against supplies for subsequent period and thus in effect, the Appellant have received the payment for the goods at the reduced rate and also reimburse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed reducing the price alongwith the duty paid for the goods, in para 9, 10, 11, 12, 13 and 14 of the judgment has held as under :- 9. On the face of the things itself, it is clear that once the goods are supplied, the property 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 stands 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 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 evidence i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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