2005 (11) TMI 361 - AT - Central Excise

Summary

Issues:
Refund claim for excise duty paid on pre-fabricated telephone booths, grounds for filing the refund claim, rejection of refund claim by Deputy Commissioner, appeal to Commissioner (Appeals), grounds of appeal by Revenue, examination of duty burden passed on by the respondents, application of Section 11B of Central Excise Act.

Detailed Analysis:

1. Refund Claim for Excise Duty on Pre-fabricated Telephone Booths:
The case involves a refund claim filed by the respondents for excise duty paid on pre-fabricated telephone booths. The respondents claimed that the booths were fully exempted from excise duty under Notification No. 5/99 dated 28-2-99. The duty was paid by the manufacturer, M/s. Shakti Met-dor Ltd., who collected the same from the respondents. The respondents asserted that they did not pass on the duty burden to the telephone booth operators, making them eligible for a refund.

2. Rejection of Refund Claim and Appeal to Commissioner (Appeals):
The Deputy Commissioner initially rejected the refund claim, prompting the respondents to appeal to the Commissioner (Appeals). The Commissioner (Appeals) set aside the Deputy Commissioner's order and directed a reevaluation of the refund application in line with the amended provisions of Section 11B of the Central Excise Act.

3. Grounds of Appeal by Revenue:
The Revenue contested the Commissioner (Appeals) order on the grounds that the respondents failed to provide evidence of excluding excise duty in their invoicing system for the telephone booth operators. It was argued that either the operators or the respondents should demonstrate the exclusion of excise duty, which the respondents allegedly failed to establish.

4. Examination of Duty Burden Passed On:
The Tribunal examined whether the duty burden had been passed on by the respondents to any other party. The respondents claimed that the telephone booths remained their property, and they had not collected any additional amounts from the operators. The Tribunal found merit in the respondents' case, noting that the duty erroneously paid by the manufacturer had been borne by the respondents, justifying the refund claim.

5. Application of Section 11B of Central Excise Act:
The Tribunal upheld the Commissioner (Appeals) decision to remand the matter to the original authority for a proper examination of the documents to determine if the duty burden had been transferred. It was emphasized that since the telephone booths were exempt from excise duty, and the respondents had a strong case, the order-in-appeal was deemed proper and legal. The Tribunal rejected the Revenue's appeal, affirming the decision in favor of the respondents.

In conclusion, the Tribunal dismissed the Revenue's appeal, upholding the refund claim for excise duty paid on pre-fabricated telephone booths by the respondents, emphasizing the exemption status of the booths and the absence of passing on the duty burden to operators.