TaxTMI 
TaxTMI 
2008 (11) TMI 89
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....tially and subsequently the debit notes were issued by the suppliers of raw material but not credited in the accounts of the customers by the assessee?" 3. The necessary facts, giving rise to the controversy are, that the assessee processes man-made fabrics. For that they receive grey unprocessed fabric, from the suppliers, and in terms of Notification dated 1.3.2001, they got deemed CENVAT Credit in respect of declared inputs, used in the manufacture of processed fabrics. The prevalent rate of deemed credit was 45% of the duty, paid on the processed fabric. 4. It was the date 11.6.2001, on which the said notification was amended vide notification No. 25/2001-CE, whereby the deemed credit was increased to 50%. In the order of the Tribunal....
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....ment of duty, any payments are made, same cannot be taken cognizance of for the purpose of Section 11B. The assessee carried the matter, by further appeal, before the Tribunal, relying upon larger bench judgment of the Tribunal, in S. Kumar Ltd. v. CCE, Indore 2003 (153) E.L.T. 217, wherein it was noticed, that since there is no dispute on the fact, that this amount of duty has not been collected by the appellants, it is not hit by the principle of unjust enrichment. The learned Tribunal found, that there is substantial force in submission of the learned counsel for the assessee, incidence of duty has not been passed on by them to their customers, who had immediately objected to charging of duty @ 55 % instead of 50%, with effect from 11.6.....
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....mediately reversed back, and came to be suffered by the assessee only, as a result of which, there was issuance of debit notes and credit notes, and therefore, no interference is required to be made in the order of the learned Tribunal. 7. After going through the judgments, at the outset, we may observe, that the question is framed on basic misconception, rather on assumption, which is not borne out from the record, in as much as, the question apprehends error on the part of the Tribunal, in allowing refund, where incidence of duty has been passed on to the customers initially, and subsequently debit notes were issued by the suppliers of raw material but, no credit notes were credited in the account of the customers by the assessee. We may....
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....s 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 assessee, by Sec. 12B, obviously, is a rebuttable one, and the assessee may lead ....
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.... would be assessee himself. 13. It is faced with this situation, that the submission made by the learned counsel for the revenue, was, that in the scheme of things, when the goods 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. 14. 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 r....