K.S. Jhaveri, J. - (1.) By way of this appeal, the Appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has allowed the appeal of the department.
(2.) This Court while admitting the appeal on 21-9-2016 framed the following questions of law :- 1. Whether transfer of refund amount to the Consumer Welfare Fund in terms of Section 12C of the Central Excise Act is justified when on merits the issue is decided in favour of the appellant and the refund is to be sanctioned to either appellant or the buyer in terms of Section 11B of the Central Excise Act? 2. Whether issuing two parallel show cause notices one for refund and other for recovery of demand on the buyer for availment of credit and ignorance of this which was a material ground and could have effected decision of the case same, while passing the order by the last fact finding body makes the order illegal, perverse and violative of principles of natural justice?
(3.) Whether payment of duty under protest and issuance of debit note in addition to a show cause notice for recovery and undertaking given by the buyer that if refund is made Central Excise Duty will be deposited by him is not enough to prove that no unjust enrichment was there on the part of appellant? 3. Counsel for the appellant has relied upon the decision of this Court in Union of India v. A. K. Spintex Ltd. - 2009 (234) E.L.T. 41 (Raj.) wherein it has been held as under :- 9. On the face of the things itself, it is clear that once the goods are supplied, the property in the goods passes to the purchaser, and seller becomes entitled to the price, and once the debit note is issued by the purchaser, and corresponding credit note is issued by the seller, the price of the goods stand reduced to the extent of debit note and credit note, meaning thereby, that after issuance of debit note and credit note, the price of goods charged by the seller, from the purchaser, is the price, initially billed, minus the amount of the debit note, and credit note, and therefore, when the debit notes and credit notes are issued and effected, which are not disputed, it cannot be assumed, that incidence of burden of excise duty has been passed on to the purchaser. 10. So far as Section 12B is concerned, it only places burden of proof on the assessee, by enacting the presumption, against him, and does not do anything beyond it. The burden placed on the assessee, by Section 12B, obviously, is a rebuttable one, and the assessee may lead 6 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 12B, 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 reliable evidence, about his having not passed burden on the purchaser, and revenue fails to rebut that evidence, the presumption enacted by Section 12B, stands sufficiently rebutted, and cannot survive ad-infinitum. 15. 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, inasmuch 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 12B, in the manner the revenue wants us to interpret it. 17. Consequently, the question is answered, with above modification, against the revenue, and in favour of the Assessee. There is no force in the appeal, the same is dismissed. ;