TaxTMI 
TaxTMI 
2009 (4) TMI 408
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....ant facts that arise for consideration are that the Respondents are manufactures of dutiable items falling under Chapter 48 of the Central Excise Tariff Act, 1985. They filed refund claim dated 22-2-2007, claiming refund of duty arising out of extending of quantity discount by way of credit notes to their wholesale dealers/depots. Show Cause Notice was issued to the Respondent for rejection of the said refund claim. In defence of the Show Cause Notice and the refund claim, the Respondents had produced before the jurisdictional Range Officer the certificates obtained from the dealers in respect of whom the subject credit notes have been issued by the Respondent; and the certificate issued by the Chartered Accountant certifying that as per th....
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....ction 11B(2) of Central Excise Act, 1944. She relied upon the decision of the Constitutional Bench of the Apex Court in the case of Mafatlal Industries Ltd. v. Union of India reported in 1997 (89) E.L.T. 247 (S.C.). She submitted that the Respondent could not establish that the duty burden has not been passed on to the ultimate customer or that the refund amount is passed on the ultimate consumer. Hence they are not eligible for refund. 4. The learned Counsel appearing on behalf of the Respondent submitted that the Adjudicating authority as well as the first Appellate authority had clearly held that the Respondents have issued credit notes for the quantity discount. She submitted that once credit note has been issued it would amount to s....
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....as under :- "We may at once observe, that this is no where, that the authorities below were of the view, that the debit note were not credited in the account of the customers, by the assessee. Rather as is clear from the impugned order of the Tribunal, that it was not disputed on the side of the Revenue, that customer had immediately issued the debit notes, and it was never contended, whether before the Assistant collector or the Commissioner (Appeals), or the Tribunal, that the necessary credit was not given by the assessee. Obviously, if it is to be assumed, that though debit notes were issued by the customers, but, the assessee did not credited to them, then, obviously, the assessee would not be entitled to claim for any refund, while....
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....e assessee may lead evidence in rebuttal, by proving issuance of debit note and credit note likewise there may be cases, where purchaser may refund the amount to seller, in cash, or may issue some bank note, like Cheque, or Draft, for refund of the amount, or there may be case, where goods are sold on credit, and while making payment of price of the goods, the purchaser may debit the amount, and thus, pay lesser amount to the seller, and if all those facts are shown and proved, the burden placed on the assessee, by Section 12-B, would shift on the revenue, then, it is required for revenue, to prove, either that the theory projected by the assessee, is fake and false, or that the burden has actually been passed on. Once the assessee leads re....
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....im 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 open flood gates for pilferage of Revenue. Firstly, we do not agree with the preposition, that it can open flood gates, in as much as, where false, fictitious or shame Debit note and credit note are issued for adjustment, the revenue can very well lead evidence, or can lead evidence in rebuttal. Simply because the Revenue fails, and is not able to rebut evidence, it cannot be assumed, that it will open flood gates for pilferage of the revenue. Difficulties may be on either side, but then, that cannot be considered as a ground for interpreting Section 12-B, in the m....