TMI Blog2008 (9) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... buyer takes credit of duty paid, amount of credit taken has to be held as the duty passed has to look for alternate remedy. - E/775/2005 - A/2148/2008-WZB/AHD - Dated:- 30-9-2008 - Ms. Archana Wadhwa, Member (J) and Shri B.S.V. Murthy, Member (T) REPRESENTED BY : S/Shri Naresh Thackkar and Sheetal Kumbhat, Advocates, for the Appellant. Shri Sameer Chitkara, SDR, for the Respondent. [Order per : B.S.V. Murthy, Member (T)]. - This appeal has been filed against rejection of refund claim of Rs. 53,30862/- . The admitted facts are that the appellants were awarded an order from Gas Authority of India Ltd. (GAIL) during international bidding for supply of MS coated pipe. While selling the pipes to M/s. GAIL, the appellants had con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... burden which they have fulfilled. He relies upon the decision of the Tribunal in the case of Coromandel Fertilizers Ltd. v. C.C.E., Hyderabad reported in 1994 (69) E.L.T. 281 (Tri.) and in the case of C.C.E., Madras v. Autolec Industires (P) Ltd. reported in 1994 (70) E.L.T. 267 (Tri.). Learned SDR on behalf of the Revenue drew attention to the Bench to the proviso clause (e) of sub-section (2) of Section 11B which is as under : "Duty of excise and the interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest if any paid, to any other person" and stated that refund is not admissible. The learned Advocate cited some judgments in support of his arguments. The very same judgeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve documentary evidence to show that duty element has been passed on to the buyer. If the buyer does not reimburse the duty or the seller is not able to recover it for whatever reason, the remedy is not available under Central Excise Law. Remedy is definitely not making a refund claim under Section 11B since the burden of proving that duty element has not been passed on to the buyer is on the claimant. Since Cenvat credit paid it is conclusive evidence taken has to be equal to the amount of duty that the incidence has been passed on. Only acceptable evidence under section 11B would be to show that buyer has not taken credit of the duty or if he has taken, He has reversed the same. It does not help the assessee that they were paid less becau ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
