TMI Blog2009 (2) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... in all these appeals is whether the lower authorities were correct in allowing the refund claims filed by the appellant and crediting it to the Consumer Welfare Fund on the ground that the appellant has not passed the test of unjust enrichment as envisaged under Section 11B of the Central Excise Act, 1944, for the reason that the appellant had issued credit notes in respect of the amount of refund claims, which were filed by them. 4. Learned Counsel appeared on behalf of the appellant would draw our attention to the findings of the lower authorities and submit that the only issue involved is whether refund should be denied on the ground that post-clearance credit notes would not amount to non-passing of incidence of duty to the customers. He would submit that the issue is now squarely settled by the Divisional Bench of the Hon ble High Court of judicature for Rajasthan at Jodhpur in the case of Union of India v. A.K. Spintex Ltd. as reported at 2009 (234) E.L.T. 41 (Raj.). 5. On the other hand, learned SDR urged that the issue is now squarely settled in favour of the Revenue in the case of S. Kumar s Ltd. v. CCE, Indore as reported at 2003 (153) E.L.T. 217 (Tri.-LB). He would a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. I find also that an SLP filed by the Department has been admitted against the High Court ruling, as reported in Commissioner v. Addison Co. [2003 (152) E.L.T. A94 (S.C.)]. Furthermore, the case law relied upon by Sri. G. Satyanarayana in the instant appeals is inapplicable since it has been stayed by Hon. APHC as evidenced by the appellant. I am now confronted with the question of what the binding precedent is. The Tribunal s Larger Bench ruling in the case of S. Kumar s Ltd. v. Commissioner of Central Excise, Indore [2003 (153) E.L.T. 217 (Tri.-LB)] in response to a reference made [2002 (143) E.L.T. 641 (Tri.-Del.)] now settles the issue in favor of the Department, wherein it has been held: The main issue that has convassed before us by the ld. Counsel for the appellant was that dismissal of the appeal in Sangam Processors (Bhilwara) Ltd. v. CCE, 1994 (71) E.L.T. 989 by the Supreme Court cannot be treated as a binding precedent since the order of the Supreme Court does not give retailed reasons. In support of the above contention ld. Counsel Shri B.L. Narsimhan relied on the two decisions of the Supreme Court in Sun Export Corpn. Bombay v. Collector of Customs, Bombay, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law and the ratio in the decision of Sangam Processors (Bhilwara) Ltd. which had been affirmed by the Apex Court has to be followed. In the result, the claim for refund made by .the appellant to the extent of Rs. 7,08,520/- is declined. As far as the claim for refund of Rs. 1,34,521/- is concerned since there is no dispute of the fact that this amount of duty had not been collected by the appellant, it is not hit by the principles of unjust enrichment. Subject to the above clarification, the appeal stands dismissed. The Larger Bench ruling clearly applied to the instant cases; the bar of unjust enrichment applied; the allowing of cash discounts, quantity rebate and freight rebate post-clearance by credit notes does not help the appellant; the computation made by the lower authority sustains; and the impugned orders need not be interfered with. 6.1 It can be noted from the above reproduced portion of the order that the basic thrust of the learned Commissioner (Appeals) was that the post-clearance issuance of credit note would not entitle them to justify their claim as to the non-passing incidence of duty. 7. We find that the Hon ble High Court of Rajasthan in the case of A.K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exchanges of debit notes and credit notes respectively, between the assessee and its immediate purchaser, the assessee is not entitled to claim refund, so as to find, that the Tribunal was wrong in allowing the refund. 9. On the fact 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 stand 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 asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for the revenue, that mechanism of issuance of debit note and credit note, if countenanced, it will open flood gates for pilferage of revenue. Firstly, we do not agree with the preposition, that it can open flood gates, inasmuch as, where false, fictitious or same Debit note and credit note are issued for adjustment, the revenue can very well lead evidence, or can lead evidence in rebuttal. Simply because the revenue fails, and is not able to rebut evidence, it cannot, be assumed, that it will open flood gates for pilferage of the revenue. Difficulties may be on either side, but then, that cannot be considered as a ground for interpreting Sec. 12B, in the manner the revenue wants us to interpret it. 16. Thus, in our view, on the facts of the case, it cannot be said, that Tribunal was in error, in allowing the claim of the refund. 17. Consequently, the question is answered, with above modification, against the revenue, and in favour of the assessee. There is no force in the appeal, the same is dismissed. 7.1. It can be noticed from the above reproduced judgment of the Hon ble High Court of Rajasthan that the issue and the question of law framed, by the Hon ble High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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