Judgment :- The revenue is in appeal assailing the order dated 28.2.2005 passed by the Customs, Excise & Service Tax Appellate Tribunal, South Zonal Bench, Bangalore, in Final Order No.308/2005. 2. We have heard Sri. C. Shashikantha, learned Standing Counsel for the appellant-revenue and Sri. K.S. Ravishankar, learned counsel appearing for the respondent. 3. We notice from the records that at the time of admission of this appeal on 31.1.2007, this Court had opined that substantial questions of law formulated in the appeal memorandum arise for consideration and had accordingly admitted the appeal. The said substantial questions of law reads as follows:- a) In the facts and circumstances of the case, whether the CESTAT is legally justified in coming to the conclusion that the respondent has not passed on the burden of duty in question to the buyers, inspite of Section 12 B of the Central Excise Act, 1944, and in the absence of sufficient evidence by the Respondent to rebut the presumption under the said section? b) Whether it is permissible for the CESTAT to totally ignore the effect of Section 12 B of the Central Excise Act, 1944? 4. Brief facts of the case are as follows: a) Respondent is engaged in the Manufacture of excisable goods i.e. Passenger Utility Vehicles and Parts thereof falling under Chapter 87 of the Central Excise Tariff Act, 1985. The Respondent purchases Tyres, Tubes and Flaps from M/s. South Asia Tyres Ltd., (for short “SATL”) Waluj, Aurangabad and avail Modvat Credit of the duty paid on such Tyres, Tubes and Flaps. Prior to 1.3.2000 the entire duty i.e. the Basic duty specified under First Schedule as well as the Special Duty specified under the Second Schedule of the Central Excise Tariff Act, 1985, paid on the Tyres, Tubes and Flaps, was available as Modvat Credit to the Respondent. However, consequent to amendment to Central Excise Rules with effect from 1.3.2000, Credit of the Special duty paid on the inputs under the Second Schedule of the Central Excise Tariff Act, 1985 was not admissible. With effect from 1.3.2000 the rate of duty payable on Tyres, Tubes and Flaps was 16% Basic Duty specified under the First Schedule and 16% Special Duty specified under the Second Schedule of the Central Excise Tariff Act, 1985. With effect from 1.3.2000 the rate of duty payable on Tyres, Tubes and Flaps was 16% Basic Duty specified under the First Schedule and 16% Special Duty specified under the Second Schedule of the Central Excise Tariff Act, 1985. As per Notification No.6/2000-CE the duty payable under the Second Schedule of the Central Excise Tariff Act, 1985, on Tyres, Tubes and Flaps was exempted, if used within the factory of production and the procedure under Chapter X was prescribed when such use was in a place other than the factory of manufacture. B) The respondent filed an application on 1.3.2003 with the Central Excise, Aurangabad II Division, for issue of CT-2 Certificate for procurement of Tyres & tubes and for issue of registration Certificate under Rule 192 of Central Excise Rules, 1944. Since there was delay in issue of CT-2 Certificate, SATL cleared the Tyres, Tubes and Flaps by paying duty at the rate of 16% Basic duty specified under the First Schedule and 16% Special duty specified under the Second Schedule of the Central Excise Tariff Act, 1985. The CT-2 Certificate was, however issued to the respondents on 8.1.2001 and 5.3.2001. c) The respondent in their capacity as a buyer filed a Refund Claim of Rs.60,77,117/-on 12.3.2001 before Deputy Commissioner, Central Excise, Aurangabad II Division having jurisdiction over factory of SATL, claiming refund of duty paid by SATL. A Show Cause Notice dated 8.5.2001 was issued to the respondent by the Deputy Commissioner, Central Excise, Aurangabad II Division, Aurangabad proposing to reject the said Refund Claim on the ground of non submission of end use Certificate and not producing evidence to establish that the incidence of duty has not been passed on to any other person. The appellant filed reply to the Show Cause Notice. However, the Deputy Commissioner, Central Excise, Aurangabad vide his order in Original No.112/RFD/2001 dated 12.6.2001, a true copy of which is produced herewith and marked as Annexure-A, rejected their Refund Claim on the ground that the exemption under Notification No.6/2000-CE was not available as the procedure under Chapter X has not been followed and the respondent had not established that they had not passed on the incidence of duty to any other person. d) Being aggrieved by the O.I.O. No.112/RFD/2001 passed by Deputy Commissioner, Central Excise, Aurangabad II Division, Aurangabad rejecting their Refund Claim, the respondent preferred an appeal with the Commissioner (Appeals). d) Being aggrieved by the O.I.O. No.112/RFD/2001 passed by Deputy Commissioner, Central Excise, Aurangabad II Division, Aurangabad rejecting their Refund Claim, the respondent preferred an appeal with the Commissioner (Appeals). The Commissioner (Appeals), Mumbai decided the matter vide O.I.A. No.SDK (1474) 137/AUR/2002 dated 28.2.2002, a copy of which is produced herewith and marked as Annexure-B holding that respondent is entitled to the Refund, but the same cannot be given to them as they had not shown that they have not passed on the duty burden to the buyers of the vehicles. e) The Tribunal accepted the contention of the assessee on the ground that respondent/assessee has sold its products under loss which was evidenced from the Chartered Accountant’s certificate and thus incidence of duty has not been passed on to its customers by order dated 28.2.2005 in Order No.308/2005. It is this order now questioned by the revenue in this appeal. 5. Sri. C. Shashikantha, learned standing counsel for the appellant would submit that the burden of proving the duty of incidence has not been passed on to its customers is on the assessee and same has not been discharged by the respondent and Tribunal was in error in holding that assessee had itself accepted the duty and not passed on to its customers on the basis of the Cost Analysis Certificate produced by the respondent in respect of one of the product i.e., family Saloon Model Vehicle and hence, the Tribunal was in error in allowing the claim of the respondent. It is further submitted that said certificate covers only one model of the vehicle and it cannot be taken as base for presuming that the convat credit on input is not included in the cost of other products or that all other products have suffered losses. He further submits that under Section 12B of the Central Excise Act, 1944, there is presumption that the incidence of duty has been passed on to the buyer and unless the contrary is proved, it is to be deemed to have been passed on to the buyer of the goods. He further submits that under Section 12B of the Central Excise Act, 1944, there is presumption that the incidence of duty has been passed on to the buyer and unless the contrary is proved, it is to be deemed to have been passed on to the buyer of the goods. He would also submit that certificate produced by the respondent herein, before the adjudicating authorities was that of the Chartered Accountant M/s. Agiwal P. Associates dated 10.5.2001 and certificate produced before Tribunal was that of Shri Om Prakash, and said certificate by itself is not sufficient to arrive at a conclusion that incidence of duty has not been passed on to the buyers. 6. Per contra, Sri. Ravi Shankar, learned counsel for the respondent, at the outset would submit that, a show cause notice came to be issued calling upon the respondent herein, to demonstrate the entitlement of refund as well as grant of refund and the queries that were raised in the show cause notice runs from Sl.No.i to ix, which came to be answered issue-wise together with corroborative documentary evidence of Cost Analysis Certificate issued by Chartered Accountant and as such, the rejection of the refund claim by the authority was an error and the said error came to be partially rectified by the Appellate Authority holding that assessee was entitled for claiming refund, but rejected the claim for refund on the ground of unjust enrichment. He further submits that the Tribunal on re-appreciation of the facts and on consideration of the Chartered Accountant’s Cost Analysis Certificate produced was of the opinion that respondent had not passed on the incidence of duty to its buyer and accordingly, allowed the claim of the respondent and this being a finding of fact does not call for interference and submits that answering the questions of law against the revenue and dismissal of the appeal. 7. The undisputed facts leading to filing of this appeal by the revenue are that; a refund claim of Rs.60,77,117/-was filed by the respondent and the respondent being a manufacturer of motor vehicles purchased tyres and tubes from M/s. South Asia Tyres Ltd., Waluj, Aurangabad on payment of central excise duty. The tyres and tubes purchased for the period till 28.2.2000 was at 32% w.e.f. 1.3.2000. The tyres and tubes purchased for the period till 28.2.2000 was at 32% w.e.f. 1.3.2000. The excise duty leviable was split into CENVAT rate at 16% and second schedule (SDE) rate of 16% as per Notification No.6/2000 dated 1.3.2000. However, remission was allowed on payment of SDE on tyres and tubes to its original equipment manufacturer subject to their following the chapter X procedure as envisaged under Rule 192 of Central Excise Rules, 1944. The respondent have secured the tyres and tubes from 1.3.2000 to 31.1.2001 from M/s. South Asia Tyres Ltd on payment of CENVAT/BED at 16% and had also paid SED at the rate of 16% and made a claim for refund of Rs.60,77,117/-towards SED paid. The original authority on consideration of the claim rejected the refund claim by order dated 12.6.2001 as per Annexure-A. The respondent being aggrieved filed an appeal before the Commissioner of Central Excise (Appeals), Mumbai, who by order dated 28.2.2002 rejected the appeal. Being aggrieved by the same, a further appeal was filed by the respondent before CESTAT in Final Order No.308/2005 and the Tribunal by its order dated 28.2.2005 allowed the appeal and ordered for refund of the duty paid. 8. It is seen from the Tribunal’s order that basis for the Tribunal to accept the statement made by the appellant was the Cost Analysis Certificate produced by the respondent before the Tribunal to contend as to how the element of cost has been arrived at for different models of cars, manufactured by them as reflected in the said certificate to contend that respondent had suffered loss in the sale of their vehicles and thus assessee itself had borne the excise duty and on examination of the said Cost Analysis Certificate, the Tribunal had come to the conclusion that duty has not been passed on to its customers as per the appellant’s counsel. In order to appreciate this contention, it would be necessary to extract the relevant provisions of the Act, 1944, namely; Section 11B and 12B of the Central Excise Act, which reads as follows: “11B. In order to appreciate this contention, it would be necessary to extract the relevant provisions of the Act, 1944, namely; Section 11B and 12B of the Central Excise Act, which reads as follows: “11B. Claim for refund of duty – (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence including the documents referred to in Section 12A as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from or paid by him and the incidence of such duty and interest if any, paid on such duty had not been passed on by him to any other person; Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991 (40 of 1991), such application shall be deemed to have been made under this sub-section as amended by the Act and the same shall be dealt with in accordance with the provisions of sub-section (2) as substituted by that Act.) Provided further that the limitation of one year shall not apply where any duty has been paid under protest. (2) If, on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund; Provided that the amount of duty of excise and interest, if any, paid on such duty of excise as determined by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to- .(a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; .(b) unspent advance deposits lying in balance in the applicant’s current account maintained with the Commissioner of Central Excise; .(c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; .(d) the duty of excise and interest, if any, paid on such duty paid by the manufacturer, if he has not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; .(e) the duty of excise and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (f) the duty of excise and interest, if any, paid on such duty borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify; Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government, the incidence of duty and interest, if any, paid on such duty has not been passed on by the persons concerned to any other person. .(3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal of any Court in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2). .(4) Every notification under clause (f) of the first proviso to sub-section (2) shall be laid before each House of Parliament, if it is sitting, as soon as may be after the issue of the notification, and, if it is not sitting, within seven days of the re-assembly, and the Central Government shall seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder. (5) For the removal of doubts, it is hereby declared that any notification issued under clause (f) of the first proviso to sub-section (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette. (5) For the removal of doubts, it is hereby declared that any notification issued under clause (f) of the first proviso to sub-section (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette. Explanation-For the purposes of this section- .(A) “refund” includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; .(B) “relevant date” means:- .(a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods:- .(i) if the goods are exported by sea or air, the date on which such goods loaded, leaves India, or .(ii) If the goods are exported by land, the date on which such goods pass the frontier, or (iii) If the goods are exported by post, the date of dispatch of goods by the Post Office concerned to a place outside India; .(b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid; .(c) in the case of goods to which bandrols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory; .(d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction; .(e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person; (ea) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 5A, the date of issue of such order; (eb) in case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; (ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court the date of such judgment, decree, order or direction; (f) in any other case, the date of payment of duty. 12B Presumption that incidence of duty has been passed on to the buyer – Every person who has paid the duty of excise on any goods under this Act 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.” 9. It is not in dispute that in so far as the claim for refund of central excise duty, in a given case would arise in two circumstances namely; that the applicant should be entitled for the refund and secondly, the said duty so collected should not have been passed on to its customers in order to avoid doctrine of unjust enrichment being applied to an applicant. Bearing these two aspects in mind, the unjust enrichment theory has received a legislative recognition under Central Excise Act, 1944 by insertion of Section 11B in Central Excise Act and thus to accept a claim for refund, the initial burden lies on the person who makes such a claim to prove that the duty has not been passed on to its customers. In the instant case, Sri. Ravi Shankar, learned counsel has vehemently submitted that Cost Analysis Certificate produced by the respondent before the authorities clearly establishes that the excise duty has been borne by the respondent itself and when this initial burden has been discharged, it was for the department to call upon the respondent to produce any other contra material which admittedly has not been done according to him. It is to be noticed that the Cost Analysis Certificate by itself would not be sufficient to substantiate the claim that the incidence of duty has not been passed on to its customers. It would be one of the relevant factors to consider the claim of an applicant for refund of duty claim. 10. It is in this background, under Section 12B of the Act, a presumption is raised in favour of the revenue and it is for the applicant to prove that incidence of duty has not been passed on to its customers which is evident from the show cause notice issued to the respondent herein. 10. It is in this background, under Section 12B of the Act, a presumption is raised in favour of the revenue and it is for the applicant to prove that incidence of duty has not been passed on to its customers which is evident from the show cause notice issued to the respondent herein. Under sub clause (iv) of show cause notice the adjudicating authority has called upon the respondent herein to establish by documentary evidence that incidence of duty for which refund claim is filed, has not been passed on to the ultimate customers or any other person. 11. To this, Sri. Ravi Shankar, learned counsel would submit that the Cost Analysis Certificate is sufficient to demonstrate that it is borne by the respondent itself and it has not been passed on to the customers and it would be a laborious process to produce 40,000 to 50,000 invoices raised on customers to demonstrate the name and this fact may be taken note off in view of the fact that more than 10 years have lapsed. 12. We are unable to accept this submission for the two reasons; i) it is not disputed by the respondent that they do not have the invoices to demonstrate this fact. It may be in a given set of circumstances it involves laborious exercise of producing voluminous documents to demonstrate their claim and; ii) there may be instances, where the applicant itself might have raised the invoices and that would also be a piece of evidence to establish that it has not passed on the duty to its customers. Coupled with these two factors, it would be a corroborative evidence for the respondent by producing the certificate of the Chartered Accountant or such other technical certificate as may be necessary in a given set of circumstances to establish the fact that duty is borne by the applicant itself. In the absence of these two ingredients, it cannot be universally held that certificate itself is sufficient to establish that incidence of duty has not been passed on to the buyers. Thus, we find that Tribunal was in error in coming to a conclusion that department ought to have given adequate reasons for rejecting the said certificate and in the absence thereof, it is to be accepted. Hence, we find the said reasoning adopted by the Tribunal is erroneous and required to be set aside. Thus, we find that Tribunal was in error in coming to a conclusion that department ought to have given adequate reasons for rejecting the said certificate and in the absence thereof, it is to be accepted. Hence, we find the said reasoning adopted by the Tribunal is erroneous and required to be set aside. Accordingly, we do so. 13. Sri. Ravi Shankar, learned counsel has relied upon the following decisions:- i) 2006 (202) E.L.T.41 (S.C.) {COMMISSIONER OF C.EX.CALCUTTA –vs-PANIHATI RUBBER LTD}. ii) 2006 (202) E.L.T.404 (Mad.) {COMMISSIONER OF C.EX.COIMBATORE –VSFLOW TECH POWER}. iii) 2008 (10) S.T.R.6 (Kar) {COMMISSIONER OF SERVICE TAX, BANGALORE –VSSTANDARD CHARTERED BANK} We find that in those cases that a certificate was issued by the buyer to the department specifying as to how the contract price was arrived at and it is on that premise, the claim came to be allowed. 14. in the instant case, we notice from the records that a certificate dated 10.5.2001 issued by the Chartered Accountant M/s. Agiwal P. Associates has been produced before the adjudicating authority and the certificate now produced by the respondent’s counsel before this Court is that of Sri. Om Prakash, Chartered Accountants, dated 17.6.2002 i.e. subsequent to the order of adjudicating authority. Hence, we find that that certificate which has now been pressed in to service was admittedly not available before the adjudicating authority for being considered. In these circumstances, we are of the opinion that the questions of law framed above require to be answered in favour of the revenue and against the assessee and accordingly, we do so. 15. In so far as the facts and circumstances of the present case is concerned, we find that the Cost Analysis Certificate dated 17.6.2002 was not available before the adjudicating authority and thus in the fitness of things, it would be just and proper to remit the matter to the adjudicating authority to consider the Cost Analysis Certificate dated 17.6.2002 now produced before this Court (said to have been produced before Tribunal also) and also such other material may be produced by the respondent to demonstrate that the incidence of duty has not been passed on to the customers for considering the refund claim of the respondent. In the event of such materials being placed before the adjudicating authority, the same shall be considered in accordance with the provisions governing refund claim and in accordance with law. In the event of such materials being placed before the adjudicating authority, the same shall be considered in accordance with the provisions governing refund claim and in accordance with law. 16. With these observations, the appeal stands allowed. First question of law is answered in the negative i.e., in favour of revenue and against assessee, second question of law is also answered in the negative i.e., in favour of revenue and against assessee. No order as to costs.