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TMI Blog2013 (6) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,093/- even after payment of VAT/CST on clearance of goods from EOU to DTA to M/s. Element Chemilink Pvt. Ltd. As per Notification No.23/2003-CE dated 31.03.2003, EOU is not required to pay SAD @ 4% on goods cleared to DTA, if VAT/CST is paid on the said goods. During the course of Audit it was noticed that respondent has paid excess duty on DTA clearance and passed on to M/s. Element Chemilink Pvt. Ltd. which is not correct. As per the instruction of respondent, M/s. Element Chemilink Pvt. Ltd. had reversed the amount of cenvat credit wrongly availed by them with interest. Further, the respondent had claimed refund of excess paid SAD with department and after process, the refund claim amounting to Rs.8,10,578/- was sanctioned vide O.I.O. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case is whether the respondent herein has reported the charge of unjust enrichment satisfactorily in respect of the refund claim by him of an amount which was paid by them duty to error/mistake. 7. It is undisputed that the respondent is not liable to pay 4% SAD on the clearances of the goods to DTA on which VAT/CST is levied. On being pointed out, the respondent informed the purchasers who has reversed the cenvat credit and respondent herein has raised a credit note indicating the reversal of the amount to be received to their respondent purchasers. It is also undisputed that M/s. Element Chemilink Pvt. Ltd. has not paid an amount of Rs.8,10,578/- to the respondent. 8. I find that the respondent has been able to pass the hurdle of conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are 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 ope ..... X X X X Extracts X X X X X X X X Extracts X X X X
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