TMI Blog1999 (8) TMI 915X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue as well as the assessee on 19-12-90. As a result, the appellants herein had been paying the duty on clearance of the polyester filament yarn at the lower rate as it was hitherto prevalent prior to 15-12-90. On 19-12-90 and 21-12-90, the officers of Central Excise debited the enhanced differential duty which arose during the period 15-12-90 to 18-2-90 in two instalments. Later on the appellants herein filed a refund claim of the aforesaid amount of duty debited by the officers in the PLA account maintained by the appellants. A Show Cause Notice was issued by the Revenue proposing to reject the refund claim so filed by the appellants on two grounds; (i) that the duty has been correctly charged inasmuch as the enhanced rate of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of the lower rate of duty as was prevalent prior to 15-12-90. It is only subsequently that the duty was debited from the PLA account of the appellants. Since the goods had already been sold, there was no question of any recovery of duty from their customers. In the facts and circumstances of this case, ld. Advocate submits that it is clear and apparent that no higher burden of duty has been passed on by the appellants to their customers. Consequently, he submits that the appeal be allowed and refund directed to be paid to the appellants. 3. Opposing the contentions, ld. SDR, Sh. A.K. Prasad submits that Section 12B raises a presumption that the incidence of duty has been passed on to the buyer unless the contrary is proved by the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of such duty to the buyer of such case. Duty is required to be paid under the provisions of the Act and the Rules thereunder at the time of clearance of the goods. It is not denied by the Revenue that only the lower amount of duty was assessed and paid at the time of removal of the goods so the presumption made in Section 12B can be only to the extent of duty assessed and paid at the time of clearance of the goods and not of the duty subsequently collected from the appellants unless there is some positive evidence to that effect produced by the department. Presumption under Section 12B will be only in respect of duty which has been assessed and paid at the time of clearance of the goods. Section 12B cannot be read in isolation with the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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