TaxTMI 
TaxTMI 
2010 (11) TMI 943
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.... and six other refund claims for a total amount of duty of Rs. 1,07,98,905/- were held to be neither barred by limitation nor by unjust enrichment. The assessee's appeal is against the rejection of the refund claim of Rs. 70,02,051/- for the period October to December 1996, whereas the Revenue's appeal is against grant of refund of duty of Rs. 1,07,98,905/- for the period January to June 1997. We have examined the records and heard both sides. The details of the refund claims in question are as follows: Sr No Month/period against which refund claim filed Date of filing refund claim Amount of duty claimed for refund 1 Oct-96 22.8.97 22,95,610/- 2 Nov-96 22.8.97 19,09,709/- 3 D....
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....ubmitted by the learned consultant for the Revenue, the decision of the learned Commissioner (Appeals) in relation to the three refund claims filed on 22.8.1997, 22.8.1997 and 21.7.1997 beyond six months from the relevant dates cannot be faulted. The Assessee's appeal is therefore dismissed. 3. In the Revenues appeal, the subject-matter is a set of refund claims which were filed on 21.7.1997 for the period January to June, 1997. The total amount of duty claimed as refund was Rs. 1,20,11,518/- out of which a claim of Rs. 12,12,613/- for the period from 1.1.1997 to 21.1.1997 was held to be time-barred. The assessee has not challenged the rejection of refund claim, as time-barred, of the said amount of Rs. 12,12,613/-.&nb....
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....gher discount was allowed which was reflected in the invoices issued to them. However, these invoices did not separately indicate the amount of duty collected from the buyers. Nevertheless, the fact that a higher discount than what had been allowed at the time of clearance of the goods from the factory was given to the buyers at the stage of clearance of the goods from the depot is not in dispute. Apparently, the differential discount was given by the assessee to their buyers by way of recovery of differential price from the latter through credit notes. These basic facts are not in dispute. 4. The learned consultant for the Revenue has also made an endeavour to show that the refund claim by the assessee was not ev....
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....heir appeal, has pleaded that the assessee issued such credit notes subsequent to the clearance of the goods. The case of the Revenue is that this action of the assessee would not help them to get over the bar of unjust enrichment. In this connection, the learned consultant has relied on the following decisions: (i) S. Kumars Ltd vs Commissioner 2003 (153) ELT 217 (Tri-LB); (ii) Grasim Industries vs Commissioner 2003 (153) ELT 694 (Tri-LB); (iii) Sangam Processors (Bhilwara) Ltd vs Commissioner 1994 (71) ELT 989 (T). In the case of S. Kumars Ltd (supra), the Tribunal's Larger Bench upheld the ratio of the decision in Sangam Processors (Bhilwara) Ltd which was found to have been affirmed by the Honble Supreme Co....
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....e goods. If that be so, the case law cited by the learned consultant for the Revenue is not relevant. 6. The above finding of the Commissioner (Appeals) has not been challenged by the assessee either. It is not in dispute that the invoices issued by them to their buyers did not separately show the amount of duty. For purposes of any claim of refund of duty under Section 11B of the Act, there is a statutory presumption (under Section 12B) that every person who had paid the duty of excise on any goods under the Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of the duty to the buyer of the goods. The statutory document which transfers the burden of duty from the assess....
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.... was actually given to the buyers by way of recovery of a part of the price by the assessee from the buyers is not in dispute. He has also pointed out that, even according to the Revenue, the assessee issued credit notes to their buyers for taking back the differential duty burden. We are afraid any of these submissions would not advance the assessee's case any further. This is because even the assessee has not challenged the finding of the lower appellate authority that there is no evidence of any such credit notes have been issued by them to their buyers for taking back any duty burden. We must, therefore, hold that the statutory presumption under Section 12B of the Act is yet to be rebutted by the assessee. ....