TMI Blog2001 (2) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... to Rs. 14,32,376/- which was equivalent to the Modvat credit already taken by them at the time of purchase of these machines; that as per the provisions of Rule 57S(2)(b) of the Central Excise Rules, the duty on the capital goods was to be calculated by deducting 2.5% of the credit taken for each quarter; that accordingly they requested the Assistant Commissioner for refund of Rs. 5,01,334/- under their letter dated 22-12-1998; that in the meantime the Assistant Commissioner, incharge of the factory of their customer, under Order-in-Original No. 106/98, dated 16-3-1999, disallowed excess Modvat credit amounting to Rs. 4,75,744/- taken by them which was debited by Modern Threads in their PLA; that accordingly the Appellants re-imbursed the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the entire amount of duty and, therefore, it cannot be said that the incidence of duty was entirely passed by them to the customer. The ld. Advocate said that the decision of the Tribunal in the case of C.C.E., Chandigarh v. Oswal Cotton Spg. Mills - 1999 (108) E.L.T. 841 is squarely applicable to the facts of the present matter; that the decision in the case of Addison and Company is not applicable as facts are different in both the matters; that in the said case the assessee has passed on the duty burden at the time of the clearance of the goods which is not so in the present matter as the customer had never paid the entire amount of duty to them. 3. Opposing the appeal, Shri A.K. Jain, ld. DR, submitted that the Assistant Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hreads Ltd. Shri Tapadia has clearly mentioned that out of excise duty amounting to Rs. 14,32,376/- they had paid only Rs. 7 lakhs to the appellants and only Rs. 2,56,632/- is outstanding against them as on 30-6-1999. I, therefore, observe from these facts that the Customer has never paid the entire amount of duty to the appellants and accordingly it cannot be claimed the entire incidence of duty was passed on to customer. It was held by the Tribunal in Oswal Cotton Spg. Mills case that once the Respondents has rebutted the presumption that every person who has paid duty of excise on any goods shall be deemed to have passed on the full incidence of such duty to the buyers of such goods, the principle of unjust enrichment will not apply as t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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