ORDER
Gowri Shankar, Member (T)
1. The appeal is against the order of the Commissioner (Appeals) confirming dismissal by the Assistant Commissioner, the claim for refund of excess duty stated to have been paid in excess.
2. I have heard the counsel for the appellant and the respondent Commissioner is unrepresented.
3. The basis for the claim for refund is that although duty actually payable was Rs. 209210/- and this being the amount shown in the appellant’s invoice issued to the buyer of the goods, both the gate pass, and the debit entry in the personal ledger account showed duty of Rs. 40819/- by mistake. The Assistant Commissioner has rejected the claim on the ground that the basis for the error that wrong price of the goods was taken was not apparent from the documents and on the further ground that modvat credit could have been availed of by the buyer of the larger amount of duty shown in the gate pass. The Commissioner (Appeals) has confirmed the dismissal on the latter ground i.e. the possibility that the buyer could have taken modvat credit noting that the certificate of jurisdictional officer is had not being produced shown that the credit was not taken.
4. The notice issued to the appellant proposed to deny the credit on the ground that the evidence was not produced that modvat credit had not been availed of by the buyer, I do not see this a valid ground for denying refund. The provisions of Rule 57E provide in cases where duty is varied for appropriate adjustment in the credit that has been taken of the duty paid would apply. It was open to the department to advise the officers having jurisdiction over the factory of the buyer that refund had been granted of the sum in question and to ensure that credit if any ought to have been taken in excess of this amount was repaid. This is any case is not a ground for denying the refund. As the counsel for the appellant says the provisions of Sub-section (2) of Section 11B of the Act will not come into the picture and there was therefore no denying the claim for refund. However, while prima facie it is true that the incidence of duty claimed as refund would not have been passed on because the invoice issued to the buyer specified duty only of Rs. 20190/- as the duty (as against Rs. 41819/- which was paid) this by itself would not be conclusive sufficient to satisfy requirement in Sub-section (2) of Section 11B of the Act. I do not see how the decision of the Tribunal in Orissa Synthetics v. CCE 1992 (82) ELT 76 which the counsel relies upon helps the appellant. In that decision, the single member of the Tribunal has said that only evidence available on record as to whether the incidence of duty has not been passed on was the sale invoice and proceeded to dismiss the claim on that ground. The converse would not necessarily hold true. It is not outside bonds of possibility that the appellant’s employee considered the sum of Rs. 20190 to be a mistake twice asked the buyer to pay a total of Rs. 41819/- and this might have been paid by the buyer. In any event the burden of proving that the incidence of duty has not been passed on rests upon the claimant.
5. Therefore, while holding that the claim for refund was justified on merits, I remand the matter to the Assistant Commissioner to ensure compliance with the provisions of Sub-section (2) of Section 11B of the Act, after considering the evidence that the appellant may produce within two months from the receipt of this order and also the evidence that the department may adduce in support of its claim.
6. The appeal is accordingly allowed and the impugned order set aside.