TMI Blog2012 (5) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... /726/2006 - 486/2011-EX(PB) - Dated:- 7-6-2011 - Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. REPRESENTED BY : Shri R.K. Verma, DR, for the Appellant. None, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President]. Shri R.K. Verma, DR present for the appellants and none present for the respondent though served. The present appeal arises from the order dated 17th June 2005 passed by the Commissioner (Appeals), Ludhiana. By the impugned order, the appeal filed by the appellants against the order of the Adjudicating Authority has been dismissed. The Deputy Commissioner, Ludhiana by his order dated 14th May 2004 had dropped the proceedings which were sought to be initiated against the respondents unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es that the buyers issued debit notes in relation to the duty element. 4. The Tribunal in Sangam Processors (Bhilwara) Ltd. case while dealing the similar issue had held thus :- 4. The submissions made by both the parties, herein, have been carefully, considered. In all these appeals, the question to be determined is whether the appellants can be said to be eligible for refund of the duty claimed by them in terms of Section 11C of Central Excises Salt Act, 1944, which reads as under : * * * * * Sub-section (2) of Section 11C provides for refund of duty that has been paid on the goods in respect of which Notification under Section 11C has been issued. Therefore, the refund claim under sub-sec. (2) should fl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld show what is required thereunder is that the person claiming refund should apply within six months of the issue of 11C Notification with satisfactory proof to show that duty incidence has not been passed on to any other person . Such is not the case here because in these cases the appellants have admittedly passed on the incidence at the time of clearance of the goods on payment of duty and had filed the refund claims under Sec. 11B in 1986 and at much later stage, apparently, after the insertion and coming into force of sub-section (2) to Section 11C from 1-7-1988, and even before the issue of notification under Section 11C on 21-12-1988 in respect of their goods, the appellants have sought to show that the duty incidence passed on had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t had issued the debit notes and had made reference to such debit notes in their ledger books that itself cannot be sufficient to say that the respondent had discharged their burden in that regard. The appellants, therefore, are justified in contending that consequent on the failure on the part of the respondent to establish the duty incident has not been passed over to the customers, the authorities below erred in dropping the proceedings. Being so, the order passed by the authority below are not sustainable and are liable to be set aside with consequential relief. Accordingly, the appeal succeeds. The impugned order along with the order of the Adjudicating Authority is set aside with consequential relief. - - TaxTMI - TMITax - Central ..... X X X X Extracts X X X X X X X X Extracts X X X X
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