JUDGMENT :- K.K. Sasidharan, J. These Civil Miscellaneous Appeals at the instance of the assessee challenge the common order dated 30 January, 2004 (Final Order Nos.132 to 136 of 2004) on the file of Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai, setting aside the order passed by the Commissioner (Appeals), Madurai allowing the refund claim made by the appellant. Facts in Nutshell: 2. The appellant is engaged in the manufacture of excisable goods falling under Chapter 40 of the Central Excise Tariff Act, 1985. The excisable goods are liable for duty on advalorem basis and the value is being determined under Section 4 of the Central Excise Act, 1944 (hereinafter referred to as “CEA, 1944”) for the excisable goods manufactured by them for the purpose of payment of duty at the time of removal. 3. The appellant for the periods 1996-97 and 1997-98 adopted assessable value, which was more than the assessable value determined under Section 4 of CEA, 1944 in respect of clearance. It was later realised that the excise duty has been paid higher than the value, which should have been adopted for the clearance. Therefore, the appellant filed a refund claim before the department under Section 11-B of CEA, 1944. The Assistant Commissioner, Central Excise, Madurai after hearing the appellants rejected their claim for refund. The said order was challenged before the Commissioner (Appeals). 4. The Commissioner (Appeals) by way of a brief order held that the assessee had paid the duty erroneously on the higher side and on coming to know of the mistake, credit notes were issued to the customers. Since the credit notes indicate that the duty burden has not been passed on to the consumers, the Commissioner allowed the appeals. 5. The orders passed by the Commissioner (Appeals) were taken up before the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as “CESTAT”). The CESTAT found that the duty incidence has been passed on by the assessee to the customers at the time of clearance of goods and Credit Note which has been issued subsequently would not come to the rescue of assessee. In short, the Tribunal arrived at a factual finding that the assessee failed to prove that the incidence of duty was not passed on to the customers and dismissed the appeals. In short, the Tribunal arrived at a factual finding that the assessee failed to prove that the incidence of duty was not passed on to the customers and dismissed the appeals. Feeling aggrieved by the common order dated 30 January, 2004, the assessee is before this Court. 6. The appeals were admitted on the following substantial questions of law. “(i) Whether the provisions relating to Unjust Enrichment in Section 11B of CEA 44 would apply even where the customers did not reimburse the excise duty as shown in the invoice but paid less excise duty on the plea that incorrect assessable value has been adopted in the invoice. (ii) Whether credit note for excess excise duty shown in the invoice (so as to regularize the transaction in the books of accounts of the manufacturer) can be considered as credit note issued for refund of excise duty even while the excess duty (charged in the invoice) was not paid by the customer.” Submissions: 7. The learned counsel for the appellant submitted that the CESTAT grievously erred in its decision regarding refund, in spite of the credit notes issued by the appellant showing that the appellant has borne the duty incidence themselves. According to the learned counsel, the CESTAT relied on a decision in Addison & Company v. Commissioner of Central Excise, Madras reported in 2001 (129) ELT 44 (Mad.), which has no application to the facts of the case and therefore the order is liable to be set aside. 8. The learned counsel appearing for the revenue contended that the appellant has not produced any acceptable evidence before the authorities to prove their contention that the incidence of tax has not been passed on to the purchasers and as such, the Tribunal was perfectly justified in setting aside the order passed by the Commissioner (Appeals). The Issue: 9. The only question which arises for consideration is as to whether the appellant has proved by way of producing materials that the duty burden has not been passed on to the consumers. Discussion: 10. There is no dispute that the assessee has passed on the duty burden at the time of clearance of goods. It was only thereafter the assessee has come up with the case that the customers have paid only the agreed price and not the higher price including duty and as such, they are entitled for refund. Discussion: 10. There is no dispute that the assessee has passed on the duty burden at the time of clearance of goods. It was only thereafter the assessee has come up with the case that the customers have paid only the agreed price and not the higher price including duty and as such, they are entitled for refund. It is true that the assessee has issued credit notes. No other documents were produced before the Assessing Authority to prove their just claim. The Assessing Authority found that the appellant has paid the duty in excess and the duty has been passed on to the buyers. In the absence of documents to substantiate their plea regarding the incidence of duty borne by them, the Assessing Authority disbelieved their case and rejected the refund claim. 11. The Commissioner (Appeals) accepted the case of the appellant. However, the fact remains that no additional materials were produced before the Appellate Authority to substantiate the contention of the appellant regarding the excise duty paid by them. The appellant has no case that other than the credit notes they have produced other primary materials in support of their claim for refund. The Commissioner (Appeals) without discussing the materials considered to arrive at a factual conclusion, allowed the appeals solely on the ground that the credit notes issued by the appellant indicates that the duty burden has not been passed on to the consumers. 12. The respondents in their appeals memorandum very clearly stated that the assessee has not produced any documents in support of their claim. 13. The CESTAT held that the refund claim and the credit notes alone were available with the Commissioner (Appeals). It was only those materials which were considered by the Assessing Authority and it was only on analyzing such materials, the refund claim was rejected. Therefore, there were no additional materials before the Commissioner (Appeals) to take a different view. The CESTAT therefore opined that the assessee miserably failed to prove their case that incidence of duty has not been passed on to the consumers. 14. The show cause notice issued by the Assessing Authority contains a statement that the appellant has not produced original documents for scrutiny. Since the appellant had already passed on the duty burden at the time of clearance of goods, the primary burden was on them to prove the contrary. 14. The show cause notice issued by the Assessing Authority contains a statement that the appellant has not produced original documents for scrutiny. Since the appellant had already passed on the duty burden at the time of clearance of goods, the primary burden was on them to prove the contrary. The self serving credit notes alone would not serve the purpose. The appellant has not produced any documents originated from the purchasers to prove that duty was borne only by the appellant. Not even an affidavit from the purchasers were produced to show that the duty was borne only by the appellant. Therefore, the CESTAT was fully justified in restoring the order passed by the Original Authority. 15. The learned counsel for the appellant placed reliance on the judgment of the Rajasthan High Court in Union of India v. A.K. Spintex Ltd., 2009 (234) E.L.T. 41) (Raj.) in support of his contention that in case the assessee issues credit notes and claimed duty paid by them in excess, the price of goods stand reduced on issuance of such credit notes and the billed amount minus amount of credit notes becomes the price of goods. 16. The issue before the Rajasthan High Court in A.K. Spintex Ltd., was regarding the burden of proof on the side of parties to prove that there was no unjust enrichment. In the said case, the High Court found that the customer had issued the debit notes and it was followed by credit notes issued by the assessee. The High Court in paragraph / of the judgment very clearly observed that it was not disputed on the side of the revenue that the customers had immediately issued the debit notes and it was never contended, whether before the Assistant Collector or the Commissioner (Appeals) or the Tribunal, that the necessary credit was not given by the assessee. Therefore it was only on the said admitted factual situation, the High Court allowed the claim of the assessee. However, the facts of the present case are entirely different. Other than the credit notes there was no materials before the authorities to prove the bona fides of the claim made by the appellant. The appellant could have produced documents before the CESTAT in view of the contention taken by the department that the assessee has not produced any material to show that they have suffered the incidence of tax. Other than the credit notes there was no materials before the authorities to prove the bona fides of the claim made by the appellant. The appellant could have produced documents before the CESTAT in view of the contention taken by the department that the assessee has not produced any material to show that they have suffered the incidence of tax. Therefore, the judgment in A.K. Spintex Ltd., has no application to the facts of the case on hand. 17. The learned counsel for the appellant relied on a decision of this Court in Addison & Co., v. Commissioner of C. Ex., Madras 2001 (129) E.L.T. 44 (Mad.) in support of his contention that there would be nothing unjust where the person, who has paid duty and has not passed on that burden to another receives refund thereby reducing the burden which he was not required to bear but had bore. In the said judgment the Division Bench very clearly stated that the assessee has to demonstrate that the burden of the duty paid has not been passed on by him to any other person. In the present case, the appellant has not discharged their burden. Therefore the observation in Addison & Co. would not come to their rescue. 18. The CESTAT having found that there were no fresh materials before the Commissioner (Appeals) to arrive at a finding different from the one arrived at by the Original Authority, rightly set aside the appellate order and restored the order passed by the Assessing Officer. We do not find any reason to take a different view in the matter. 19. In the result, by answering the substantial questions of law against the assessee and in favour of the revenue, we dismiss the Civil Miscellaneous Appeals. No costs.