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2013 (10) TMI 263 - AT - Central ExciseEligibility for Refund - Provisional Assessment - manufacture of explosives - Whether in view of subsequent issue of credit notes neutralising the higher price along with higher duty earlier charged, the respondent would be eligible for refund - Held that:- If the credit notes were genuine and had been acted upon, resulting in neutralising the higher incidence of duty earlier passed on, the refund claim would no longer be hit by the principle of unjust enrichment - The impugned order was set aside and the matter was remanded to the original adjudicating authority for de novo adjudication keeping in view the observations and also keeping in view the judgments of UNION OF INDIA Versus A.K. SPINTEX LTD. [2008 (11) TMI 89 - RAJASTHAN HIGH COURT] COMMISSIONER OF C. EX., LUDHIANA Versus BHARAT BOX FACTORY LTD. [2007 (3) TMI 167 - HIGH COURT, PUNJAB AND HARYANA] - Though Section 12B provided 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 assesse to the customer, this was a rebuttable presumption and if the assesse produced 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 had been neutralized, burden would then shifted to the Revenue to prove that the claim of the assesse was not correct and if the assesse’s claim was found to be correct, the refund claim would be admissible.
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