2004 (2) TMI 436 - AT - Central Excise

Summary

Issues:
- Entitlement for refund of duty paid
- Appeal against the order of the Commissioner
- Time-barred refund claim
- Burden of proof regarding passing on the duty incidence

Entitlement for refund of duty paid:
The appeal in question stemmed from the Commissioner (A)'s decision granting a refund of Rs. 10,07,661 to the appellants. The Revenue argued that the appellants did not challenge the Commissioner's determination of the Annual Capacity of Production (ACP) and paid duty accordingly. The Revenue contended that without appealing the ACP decision and succeeding in such an appeal, the appellants were not entitled to a refund. Additionally, the Revenue claimed that the refund request made after the payment was time-barred under Rule 233B of the Central Excise Rules. The Revenue also emphasized that under Section 12B, the burden lies on the claimant to prove that the duty incidence was not passed on, which the respondents allegedly failed to establish.

Appeal against the order of the Commissioner:
The Revenue's primary argument was that the Commissioner (A) erred in granting the refund while the ACP determination by the Commissioner was still in effect and not overturned by a superior judicial body. The Deputy Commissioner had previously rejected the refund claim based on this reasoning, which the Revenue believed was valid. The Revenue also highlighted that the duty payment was not made under protest as per Rule 233B, which further supported their position.

Time-barred refund claim:
The Revenue contended that the refund claim made after the duty payment was time-barred as it was not in accordance with the prescribed procedure under Rule 233B of the Central Excise Rules. This argument was crucial in the Revenue's stance against granting the refund.

Burden of proof regarding passing on the duty incidence:
Under Section 12B, the claimant of a refund is required to demonstrate that they have not passed on the duty incidence. The Revenue raised concerns that the respondents failed to meet this burden of proof, which was a significant factor in the decision-making process.

In conclusion, after hearing both sides, the Tribunal accepted the Revenue's arguments and allowed the appeal. The Commissioner (A)'s order granting the refund was set aside based on the reasons presented by the Revenue regarding the ACP determination, non-protest of duty payment, time-barred refund claim, and the burden of proof regarding passing on the duty incidence.