ORDER
Krishna Kumar, Member (J)
1. Heard both sides.
2. The issue relates to refund of Service Tax of Rs. 50,000.00. The adjudicating authority while rejecting the refund on the ground of unjust enrichment has given the reasons for rejection in para 17. The adjudicating authority has applied the ratio of the decisions in the cases of Sangam Processors (Bhilwara) Ltd. v. CCE and CCE v. Addison & Co. reported in 1997 (70) ECR 722 (T). In the Sangam Processors (Bhilwara) v. CCE reported in 1994 (71) ELT. 989 (Tri.) which was later on approved by the Hon’ble Supreme Court. The Tribunal has held that once duty has been passed on to the customers at the time of clearance, assessee cannot claim refund of the duty by issuing credit notes subsequently. In the Addison & Co. (supra) the Tribunal has held that refund claim arise with reference to the date of duty in respect of clearance of goods from factory and that the issue of credit notes to the buyer is immaterial once, the duty burden has been passed on by the assessee at the time of clearance of goods. The Tribunal has also held that post clearance transaction by issue of credit notes is no concern of the Central Excise authorities and there is no requirement in law or any stipulation that in the event of credit given subsequent to clearance of goods, the assessee will continue to remain eligible to refund if available in terms of Section 11B. The scheme of Section 11B is so devised that if the duty burden has been passed on by the assessee then the buyer of the goods may be eligible for the claim of refund. He (customer) has also to establish that duty burden has not been., passed to any other person. This provision in law has been made to ensure that the refund is allowed only to the person who ultimately absorbs the duty burden.
3. The ld. Counsel tried to convasss that the buyer has written a letter dated 01.07.99 requesting to issue amended invoice or credit note for the relevant amount. The appellant in turn vide credit note dated 17.7.99 has stated in the credit note as under:-
“Being the Service Tax charged by us vide invoice no. MB/41/60260467/RI/05 dated 31.3.99 non payable as per order dated 17.7.99.”
The credit note and the above letter had been duly considered by the adjudicating authority in the impugned order and adjudicating authority has interalia categorically stated that once the invoice or bill has been drawn, it is sufficient to presume that the incidence of duty/service tax has been passed on. The adjudicating authority has also recorded that there is no provision in the law for the actual realization.
4. Therefore, I do not find any substance in the argument of the ld. Counsel that there was no actual receipt of the Service Tax by the appellant. I find no merits in the appeal filed by the appellant and the same is accordingly, dismissed.
(Pronounced in Court)