TMI Blog2009 (4) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... of credit notes issued to dealers, admissible. - E/100-101/2007 - 934-935/2009 - Dated:- 30-4-2009 - S/Shri T.K. Jayaraman, Member (T) and M.V. Ravindran, Member (J) Ms. Joy Kumari Chander, Jt. CDR, for the Appellant. Ms. L. Maithili, Advocate, for the Respondent. [Order per : M.V. Ravindran, Member (J)]. - These two appeals have been filed by the Revenue against the Orders-in-Appeal No. 22/2007 dated 29-11-2007 and 23/2007, dated 30-11-2007, passed by the Commissioner of Customs, Excise Service tax (Appeals-I), Hyderabad. 2. The relevant facts that arise for consideration are that the Respondents are manufactures of dutiable items falling under Chapter 48 of the Central Excise Tariff Act, 1985. They filed refund cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is her submission that the decision of the Tribunal in the case of M/s. Dharamsi Morarji Chemical Co. Ltd. v. CCE, Mumbai-VII [2002 (150) E.L.T. 659 (Tri.-Mumbai)] has been challenged by the Department before the Hon'ble Supreme Court and is pending before the Supreme Court. It is also submitted that once the duty burden has been passed on to the dealer who in turn passes the burden down until it reaches the ultimate customer, in such a case, the refund is subject to establishment that the duty burden has not been passed on to any other person as per Section 11B(2) of Central Excise Act, 1944. She relied upon the decision of the Constitutional Bench of the Apex Court in the case of Mafatlal Industries Ltd. v. Union of India reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing authority has obtained an undertaking from the Respondents to pay back the amounts refunded in the event of the Hon'ble Supreme Court's decision goes in favour of the Revenue in appeal filed against the judgment in the case of M/s. Dharma Sai Morarji Chemical Co. Ltd. (supra). We also find that the judgment of Hon'ble High Court of Rajasthan in the case of M/s. A.K. Spintex Ltd. Anr. (supra) was answering a question of law in an identical issue, which was raised by the Revenue in an appeal before them. We may reproduce the ratio of the said judgment as under :- "We may at once observe, that this is no where, that the authorities below were of the view, that the debit note were not credited in the account of the customers, by the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 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. So far as Section 12-B is concerned, if 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 12-B, obviously, is a rebuttable one ,and the assessee may lead evidence in rebuttal, by proving issuance of debit note and credit note likewise there may be cases, where purchaser may refund the amount to seller, in cash, or may issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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. In our view, the stand cannot be accepted. Passing on the burden of excise duty to the next purchaser, cannot be left in the realm of presumption. In cases, where the assessee is able to show, that the burden is not passed on, or it has been reversed, the claim of refund cannot be denied. It is then, contended by the learned counsel for the Revenue, that mechanism of issuance of debit note and credit note, if countenanced, it will open flood gates ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
