Judgment : Dilip b. Bhosale, J. 1. We have heard learned counsel for the parties. We Admit the appeal to consider the following question of law: “Whether the assessee passed on the incidence of duty paid by them on tubes and tyres to their customers as provided for under Section 12-B of the Central Excise Act, 1944 (for short, the Act’)?” By consent we have heard learned counsel for the parties for final disposal of the appeal. 2. This Central Excise Appeal is directed against the order dated 8.8.2012 passed by the Customs, Excise and Service Tax Appellate Tribunal (for short ‘the Tribunal’) in appeal No.E/716/2002. By the impugned order a refund claim of the assessee stands rejected. 3. The appellant – assessee (for short “the assessee”) is engaged in manufacture of passenger utility vehicles and parts thereof, which, admittedly are excisable under Chapter 87 of the Central Excise Tariff Act, 1985 (for short ‘the Act of 1985’). At the relevant time, the assessee used to purchase tyres and tubes from M/s. South Asia Tyres Limited, at Aurangabad in the State of Maharashtra and avail modvat credit of the duty paid on these goods. Prior to 1-3-2000, entire duty i.e. the basic duty specified under the first schedule as well as special duty specified under the second schedule of the Act of 1985, paid on such tyres and tubes, was available as modvat credit to the respondent. Consequent to the amendment of Central Excise Rules, with effect from 1-3-2000, credit of special duty paid on the inputs under the second schedule of the Act of 1985 was not admissible. With effect from 1-3-2000, the rate of duty payable on tyres and tubes was 16% basic duty specified under the First Schedule and 16% special duty specified under the Second Schedule of the Act of 1985. As per notification No.6/2000-CE, the duty payable under Second Schedule of the Act of 1985 on tyres and tubes 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. 3.1. On 1-3-2000, the assesee had filed an application with the central excise, Aurangabad-II Division, for issue of CT-2 certificate for procurement of tyres and tubes and for issue of registration certificate under Rule 192 of Central Excise Rules, 1944. 3.1. On 1-3-2000, the assesee had filed an application with the central excise, Aurangabad-II Division, for issue of CT-2 certificate for procurement of tyres and 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 and tubes by paying duty as prescribed in the schedules. The CT-2 certificate was, however, issued on 8.1.2001 and 5.3.2001. 4. In view of the said notification (No.6/2000-CE), an application was made by the assessee seeking refund of the duty paid by them on these items to the manufacturer thereof at Aurangabad. 5. The application under Section 11B of the Act seeking such refund, filed by the assessee, was however rejected by the Adjudicating Authority under Section 35 of the Act and was partly allowed by the Appellate Authority. Insofar as refund of the excise duty paid by the assessee on tubes and tyres is concerned, it was rejected by the Appellate Authority though it held that the assessee was entitled to seek refund. In other words, the claim of the assessee was rejected by the Appellate Authority on the ground that the assessee could not and did not place convincing material on record to demonstrate that the incidence of duty had not been passed on to the customers. The appeal was accordingly disposed of by the First Appellate Authority vide order dated 28.2.2002. 6. Feeling aggrieved and dissatisfied by the order of the first Appellate Authority, the assessee filed an appeal before the Customs, Excise and Service Tax Appellate Tribunal, South Zone Bench, Bangalore being Appeal No.E/716/2002. The appeal was allowed by the Tribunal vide order dated 28.2.2005. The order of the Tribunal was carried in appeal before this Court under Section 35G of the Act by the Revenue bearing CEA No.28/2005. 7. This Court in the appeal framed the following two questions of law: 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? 8. Both the questions were answered against the assessee and in favour of the revenue vide judgment and order dated 7.12.2009 reported in 2010 (256) ELT. 216 (Kar). This Court considered the material that was placed before the Tribunal and also the Cost Analysis Certificate dated 17.6.2002 which was produced for the first time in the appeal and remanded the matter with the following observations made in paragraphs 14 and 15 of the order: “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.” 9. 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.” 9. It was submitted before this Court that the Cost Analysis Certificate is sufficient to demonstrate that the incidence of duty, borne by the assessee, had not been passed on to the customers and it would be laborious process to produce 40,000 to 50,000 invoices raised on the customers in support thereof. In paragraph 9 of the order, this Court observed that “the cost analysis certificate by itself would not be sufficient to substantiate the claim that the incidence of duty had not been passed on to its customers”. It would be necessary to notice further observations made by this Court in the light of the submissions made on behalf of the assessee, in paragraph 12 of the order, which read thus: “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 tow 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.” (Emphasis supplied by us) It is against this backdrop, this Court with further observations in paragraphs 14 and 15, remanded the matter to the Adjudicating Authority. 10. This judgment and order dated 7.12.2009 was carried to the Supreme Court in Civil Appeal No.2911/2010. The Supreme Court while confirming the order passed by this Court modified it only to the extent of remanding it to the Tribunal instead of Adjudicating Authority. The relevant observation made by the Supreme Court in the order dated 29.3.2011 read thus: “We have carefully considered the submissions of the counsels appearing for the parties. In our considered opinion, fresh evidence was taken notice of by the Tribunal in the manner of production of the certificate dated 17.6.2002 issued by the Chartered Accountant. The effect and implication of the contents thereof are required to be examined in the light of any other evidence that may be available on record or could be made available. The parties are also required to be given opportunity to adduce such other materials which may be produced by either of the parties in respect of the disputes between them so as to enable the Tribunal to come to an appropriate finding on all the issues and in respect of all the models. In that view of the matter, we see no reason to interfere with the findings recorded by the High Court but instead of remitting back the matter to the Adjudicating Authority, we direct the partly allow this appeal by directing that the matter shall now be remitted to the Tribunal for fresh and do novo adjudication of the entire disputes between the parties relating to all the models manufactured by the Appellant. While doing so, we set aside the earlier order of the Tribunal and request the Tribunal to consider the entire evidence on record, which is already available and which may be produced by any of the parties, for which an opportunity shall be granted to both the parties to produce additional evidence, if any. While doing so, we set aside the earlier order of the Tribunal and request the Tribunal to consider the entire evidence on record, which is already available and which may be produced by any of the parties, for which an opportunity shall be granted to both the parties to produce additional evidence, if any. In terms of the aforesaid order, we partly allow this appeal to the extent indicated above and remit back the matter to the Tribunal for fresh adjudication in accordance with law and in terms of the order passed by the High Court. We also request the Tribunal to dispose of the appeal as expeditiously as possible, preferably within a period of six months from the date of receipt of the records.” (emphasis supplied by us) Thus, the matter once again went before Tribunal and the Tribunal on the basis of materials placed before it held that the assessee failed to establish that the incidence of duty had not been passed on to the customers for considering their refund claim. 11. While considering the question of law raised in the appeal, we also would like to consider whether the Tribunal was right in holding against the assessee on the basis of materials placed on record by the assessee after remand of the matter by this Court vide order dated 7.12.2009 rendered in CEA 28 of 2005 and confirmed by the Supreme Court vide order 29.3.2011 in Civil Appeal No.2911 of 2010, and whether the Tribunal has taken into consideration the entire materials on record for answering the question in favour of the revenue. 12. The assessee-company was established in 1997 and is engaged in manufacture of Multi Utility Vehicles. The assessee commenced their production in November 1999. At the relevant time they had their production in four versions namely Fleet, Family saloon (FS), grand Saloon (GS) and Grand saloon Touring (GST). Though they claim refund of the excise duty in respect of all four models, they had produced certificate of the Cost Accountant only in respect of ‘Family Saloon’ model showing cost computation based on average material costs. This Court in the earlier round had an occasion to consider the said certificate and in addition thereto, one more certificate issued by chartered accountant dated 17.6.2002. This Court in the earlier round had an occasion to consider the said certificate and in addition thereto, one more certificate issued by chartered accountant dated 17.6.2002. On remand, the assessee in addition to the aforementioned two certificates, produced similar certificates before the Tribunal in respect of the remaining three models. Over and above these certificates, the assessee did not produce any other material/additional evidence on record before the Tribunal in support of their claim. In other words, no efforts of whatsoever nature were made by the assessee in producing the additional materials / evidence before the Tribunal after the order of remand passed by this Court and confirmed by the Supreme Court. The Tribunal, therefore, did not have additional evidence/material before it to consider the claim of the assessee and in view thereof and for the reasons recorded in the impugned order held that the evidence on record is not sufficient to show that the incidence of Central Excise Duty paid on tyres and tubes, which were used in the manufacture of all four models of vehicles by the assessee, was passed on to its customers. It would be relevant to reproduce the observation made by the Tribunal in the impugned order in para 9, which read thus: “9. The evidence adduced by the assessee consists of the following documents:- (i) Cost Accountant’s certificate dated 17.6.2002 in relation to ‘FS’ model of motor vehicles. (ii) Cost Accountant’s certificate dated 18.11.2011 in relation to ‘GS’ model of motor vehicles. (iii) Cost Accountant’s certificate dated 18.11.2011 in relation to ‘GST’ model of motor vehicles. (iv) Cost Accountant’s certificate dated 18.11.2011 in relation to ‘Fleet’ model of motor vehicles. We have perused these documents. The certificate issued in respect of ‘Fleet’ model of motor vehicles manufactured and sold by the assessee says that this model of vehicle was manufactured only in the month of December 2000 and hence the question of cost comparison pre-1.3.2000 and post-1.3.2000 does not arise. If that be so, the Cost Accountant’s certificate pertaining to ‘Fleet’ model of motor vehicles cannot be of any support to the appellant whose contention is that as the selling price of the motor vehicles remained the same prior to 1.3.2000 and after that date as certified by their Cost Accountant, it should be held that the incidence of duty was not passed on to the buyers of the motor vehicles. Each of the other three certificates has certified that the selling price remained the same and hence the elements which constituted the selling price also remained the same from 1.3.2000 vis-à-vis the pre-1.3.2000 price. All the certificates also say that they were issued on the basis of verification of records maintained by the assessee. But, in answer to queries from the Bench, the learned counsel for the appellant has admitted that no records are available for verification. Therefore any independent scrutiny of the primary records necessary for the assessee to discharge the burden of proof against the bar of unjust enrichment is not possible. In terms of the Supreme Court’s remand order, we have stepped into the shoes of adjudicating authority and hence can call upon the assessee to adduce primary evidence to support their claim that the incidence of duty paid on tyres and tubes had not been passed on to the buyers of motor vehicles.” (emphasis supplied by us) 13. At this stage, it would be relevant to make reference to the relevant provisions of the Act. Section 11B of the Act, to the extent it is necessary, reads thus: “11B. Claim for refund of duty and interest, if any, paid on such 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: x x x” (emphasis supplied) Section 12-A and 12B of the Act are also relevant which read thus: “12A. Price of goods to indicate the amount of duty paid thereon - Notwithstanding anything contained in this Act or any other law for the time being in force, every person who is liable to pay duty to excise on any goods shall, at the time of clearance of the goods, prominently indicate in all the documents relating to assessment, sales invoice, and other like documents, the amount of such duty which will form part of the price at which such goods are to be sold. 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.” (emphasis supplied by us) 14. Section 11B of the Act is an enabling provision under which an assessee can claim refund of duty and interest, if any, paid on such duty. Since it is not in dispute that assessee is entitled for refund of duty under this provision, provided the incidence of duty was passed on to the customers, this Section need not detain us further. 15. Section 12-A provides for price of goods to indicate the amount of duty paid thereon. It states that every person who is liable to pay duty to excise on any goods shall, at the time of clearance of the goods, prominently indicate in all the documents relating to assessment, sales invoice, and other like documents, the amount of such duty which will form part of the price by which such goods are to be sold. 16. Under Section 12B every person who has paid the duty on excise on any goods under the Act shall, unless the contrary is proved by him, be deemed to have passed the full incidence of such duty to the buyer of such goods. 17. From bare perusal of these provisions, it is clear that in a case, like the present one, it is necessary for the assessee who is seeking refund as contemplated by Section 11B of the Act to satisfy two conditions/circumstances namely that the applicant should be entitled for refund, and secondly, that the incidence of duty had not been passed on to the customers. While examining whether these conditions are satisfied it is necessary to bare in mind the deeming fiction in Section 12 B of the Act. In the present case, it is not in dispute that the first condition stands satisfied. Therefore, what remains for us to examined is whether the incident of excise duty was passed on to the customers. 18. This position of law is clear not only from the provisions mentioned in the forgoing paragraphs but also from the observations made by the Division Bench of this Court while remanding the matter and the observations made by the Supreme Court while confirming the order of this Court. This Court and so also the Supreme Court gave one more opportunity to the assessee to place/adduce additional materials/evidence in respect of their claim of refund so as to enable the Tribunal to come to an appropriate finding on all the issues on the basis of all the evidence/materials placed on record. The Supreme Court in the order dated 29th March 2011 has so observed and refused to interfere with the findings recorded by this Court. Despite such opportunity, the assessee did not produce/adduce any materials/evidence in support of the certificate/s of the Cost/Chartered Accountants. The certificates in support of one model of cars were already produced on record and the assessee was allowed to produce similar certificates and the additional evidence/material in support thereof in respect of all the remaining three models of their cars. As observed by this Court earlier, and we are also of the same opinion, that Costs Analysis Certificate by itself would not be sufficient to claim that the incidence of duty had not been passed on to its customers. It is true that the assessee claims that certificates were issued on the basis of verification of records maintained by the assessee, but no such record was placed before the Tribunal for its perusal. Though, in our opinion, it was difficult to produce invoices in respect of 40,000-50,000 customers, but they could have produced atleast few such invoices on record to show whether the incidence of excise duty was passed on to the customer. Though, in our opinion, it was difficult to produce invoices in respect of 40,000-50,000 customers, but they could have produced atleast few such invoices on record to show whether the incidence of excise duty was passed on to the customer. That apart, to our specific query, learned counsel for the assessee, fairly stated that all invoices those were issued during the relevant period made reference to the tax component, namely, excise duty payable by the customer and it was, accordingly paid by the customers. He, however, submitted that merely because the excise duty payable by the customer was indicated in the invoice issued by the assessee, forming part of the price at which vehicle was sold, would not mean that they passed on the excise duty to the customers in view of the fact that they sold the vehicles at loss. In support of this contention, he once again placed reliance upon the certificate of Costs Accountant to show that every vehicle at the relevant time was sold at a loss of Rs.74,000-75,000 as against the excise duty payable on each vehicle at the relevant time was hardly Rs.1,000/-. Though these figures, as appear in the Cost Accountants certificate, are attractive, in our opinion, would not help the assessee to contend that sale of vehicles at loss would mean that the incidence of duty was not passed on to the customers in view of the deeming fiction in Section 12B of the Act, in the absence of additional material/evidence, in support thereof. The assessee, despite the opportunity that they got in view of the order of this court and the Supreme Court, failed to place any such materials on record in support of their claim. 19. Merely because, the assessee sold the vehicles at loss would not mean that the incidence of duty had not been passed on to the customers, more particularly, when the invoices issued to the customers admittedly had indicated the excise duty forming part of the price at which the vehicles were sold. If at all, the assesee suffered loss, it is clear, they suffered loss on their goods and it cannot be stated that excise duty paid by assessee was not passed on to the customers. In the circumstances, the appeal is disposed of answering the question of law in favour of the revenue and against the assessee. If at all, the assesee suffered loss, it is clear, they suffered loss on their goods and it cannot be stated that excise duty paid by assessee was not passed on to the customers. In the circumstances, the appeal is disposed of answering the question of law in favour of the revenue and against the assessee. However, there shall be no order as to costs.