9911796707
TMI Blog2016 (3) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... pplied equipment manufactured by them to M/s. Nuclear Power Corporation of India Ltd., Tarapur. The invoices were raised on 29th and 31-3-2003 showing the total assessable value of Rs. 7,37,25,731/- and paid appropriate duty amounting to Rs. 1,17,96,116/-. On being pointed out about the mistake (by the buyer) that the assessable value was in fact Rs. 7,26,58,100/-, the appellant realizing the mistake issued a credit note No. 87977, dated 28-8-2003 in favour of their customer, thereby giving a credit of Rs. 12,97,898/-. Including an amount of Rs. 1,70,821/- being the amount of excise duty calculated in excess in the original invoices and also an amount of Sales Tax of Rs. 59,446/-. As the sales have been made on credit, the appellant credite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person." (emphasis supplied) In view of the clear mandate of the statute, it is argued that the presumption is rebutable. The learned counsel further states that it is an admitted fact that they had sold on credit, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Consumer Welfare Fund has been constituted does not on that score require the authorities dealing with refund claims to start an enquiry as to the price at which the goods had been sold to the ultimate consumer after the dealer who purchases the goods from the manufacturer, sells to its sub-dealer who in turn may sell to a retailer who in turn ultimately may sell the same to the actual consumer. The enrichment of the person, who has paid the duty and seeks refund would be unjust if he even while not suffering the burden of duty after having passed on the same to another obtains refund and retains such refund with him. There would be nothing unjust where the person who has paid duty and has not passed on that burden to another rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee having proved that it had not passed on the incidence duty to its buyers, it was not entitled to the refund even when all the other conditions required to be satisfied under Section 11B had been satisfied." 3.2 The learned counsel also relies on the ruling of the Hon'ble Karnataka High Court in the case of Commissioner of Central Excise, Belgaum v. Gokak Mills - 2013 (295) E.L.T. 392 (Kar.), wherein the tax mistakenly paid on the goods removed under CT-3 certificate, where no payment of duty was required, credit note was issued to the extent of said duty, it was held that from the facts on record, there was no liability on part of the assessee to pay excise duty. However, excess duty of Rs. 45,468/- was paid under mistake and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification No. 9/96-C.E., dated 23-7-1996, the goods were exempted from such duty, the assessee had sent to M/s. DTE a cheque for Rs. 7,08,520/- which was equivalent to the amount of duty, the appellant had collected from the said M/s. DTE at the time of clearance of the goods. In such circumstances, the Larger Bench of this Tribunal held that the claim for refund made by the appellant to the extent that there is no dispute of the fact that the amount of duty has not been collected by the appellant, is not hit by principles of unjust enrichment. Accordingly, the learned Counsel prays for allowing the appeal. 4. The learned DR relies on the impugned order. 5. Having considered the rival contentions, I find that there is no dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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