TMI Blog2023 (12) TMI 564X X X X Extracts X X X X X X X X Extracts X X X X ..... its decision pertaining to COMMISSIONER OF CENTRAL EXCISE, RAIPUR VERSUS IBP LTD. [ 2013 (10) TMI 263 - CESTAT NEW DELHI] . In the instant case goods were cleared to M/s. Kalpataru Power Transmission Ltd. without payment of duty availing the benefit under Notification No. 108/95-CE dated 28.8.1995. They had paid excise duty to the tune of Rs.6,08,053/- during November 2010 on five consignments made in respect of the additional quantities, due to delayed receipt of amendment certificate. Having subsequently received the certificate which entitles them to duty exemption they have raised a credit note on their customers and sought a refund. In the circumstances it becomes the duty of the Department to facilitate such an assessee caught in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of the additional quantities, though the date of clearance was after the date of amendment certificate. The appellant filed refund claim in June 2011 claiming refund of the excess duty paid. After due process of law, the original authority vide Order in Original dated 13.7.2012 rejected the refund. The appellant filed appeal before Commissioner (Appeals) who rejected the appeal as devoid of merits. Hence the appellant is before this Tribunal. 3. Shri R. Vijay, learned consultant appeared for the appellant. Shri M. Ambe, learned AR appeared for the department. 3.1 The learned consultant appearing for the appellant submitted that they have cleared certain goods to M/s. Kalpataru Power Transmission Ltd. who are sub-contractors of Powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustomer is a post-clearance activity and is not relevant for the sanction of refund in terms of section 11B. Sections of the Act have to be read strictly and no redundancy can be read into it. This being so, the appeal may be rejected. He relied the decision of the Tribunal in the case of CCE, Hyderabad Vs. TFL Quiln India Pvt. Ltd. 2013 (294) ELT 421 (Tri. Bang.). 4. I have gone through the facts of case and I have that the short question to be answered is whether in relation to unjust enrichment the issue of credit note by the appellant at a later date to the customer is a post-clearance activity and is not relevant for the sanction of refund in terms of section 11B. 5. Section 11B (2) (d)of the Central Excise Act which is relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prevail over the judgment cited by Revenue. The relevant portion is extracted below: 7. Thus what the Hon ble Rajasthan High Court in the above judgment has held, is that while in terms of the provision of Section 12B of the Central Excise Act, 1944, once goods are cleared on payment of duty under invoice which mentions some amount as duty, it is presumed that the incidence of that duty has been passed on to the customer and the burden of proof that the incidence had not been passed on to the customer, is on the Assessee, this presumption is a rebuttable presumption and once the assessee produces the evidence in form of issue of credit notes to the customer or any other evidence, the burden shifts to the department and it is for the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produces evidence showing that by the issue of credit note to the customer subsequently or by charging lesser price in respect of subsequent clearances, the incidence of higher duty earlier charged have been neutralized, burden would then shifted to the Revenue to prove that the claim of the assessee is not correct and if the assessee s claim is found to be correct, the refund claim would be admissible. (emphasis added) 7. In the instant case goods were cleared to M/s. Kalpataru Power Transmission Ltd. without payment of duty availing the benefit under Notification No. 108/95-CE dated 28.8.1995. They had paid excise duty to the tune of Rs.6,08,053/- during November 2010 on five consignments made in respect of the additional quanti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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