2006 (12) TMI 409

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....esentative of the appellant was that presumption under Section 12B was not attracted in cases where the duty was paid after clearances were effected. Reliance was placed on the decision of the Tribunal in Plas Pack Industries & Ors. v. CC & CE, Ahmedabad, reported in 2004 (167) E.L.T. 422 (Tri.) = 2004 (63) RLT 207 (CESTAT-Mum.), in which it was held that the presumption, under Section 12B of the Central Excise Act, 1944, that incidence of duty has been passed on to the buyers will not be attracted when the payment of duty was made subsequent to the clearance of goods. The learned authorised representative pointed out from the record that the appellant had paid the differential amount of duty of Rs. 2,36,788/- on 23-11-98, while the goods w....

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....differential duty paid and the value worked out by the appellant was a part of gross sale price charged from their buyers who had not availed of the cash discount facility. It was held that incidence of duty appeared to have been passed on to such buyers, and their refund claim should be transferred to the consumer welfare fund. 5. Under Section 12B of the Act, it has been provided that every person who had paid the duty of excise on any goods shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods. The provision does not make any distinction on the basis of time when the duty is paid namely, whether it is paid at the time of clearance or thereafter. However....

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....tion 12B, under the provision of Section 11B, requires that for entitlement of refund claim, it should be established that the incidence of duty had not been passed on to any other person. In other words, the question whether refund should be given or not would depend on the requirement of the provision of Section 11B being satisfied. Under that provision, any person claiming refund of any duty of excise is required to produce documentary or other evidence to establish that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by him, and the incidence of such duty has not been passed on by him to any other person. This requirement of Section 11B is independent of any presumption that may arise....