2009 (2) TMI 689 - AT - Central Excise

Summary

Issues:
1. Appeal against the refund of Central Excise Duty.
2. Maintainability of refund without challenging assessment.
3. Passing on the incidence of duty to customers.
4. Onus on the assessee to show non-passing of duty to customers.
5. Permissibility of refund under Section 11B of the Central Excise Act.

Analysis:
1. The appeal was filed against the refund of Central Excise Duty granted by the Commissioner. The Commissioner allowed the refund on the basis that the duty incidence was not passed on to the customers. The Revenue challenged this decision.

2. The Revenue contended that without challenging the assessment, the refund is not maintainable. They argued that the customers of the Respondents availed credit of higher duty, which benefited them. The Revenue's stance was that if duty incidence is passed on to the customer and the assessment order is not challenged, the refund claim is not sustainable.

3. The Respondents explained that due to a computer error, the goods' value was incorrectly shown higher than the actual value cleared. The customer pointed out this mistake and paid the correct amount. The Respondents argued that since the duty incidence was not passed on to the customers, the refund was rightfully allowed by the lower Appellate Authority.

4. The Tribunal emphasized that in refund cases, the burden is on the assessee to demonstrate that duty incidence was not transferred to the customers. The Respondents issued invoices with inflated values and duty amounts, but the customer rectified this error by paying the correct value. Refund under Section 11B of the Central Excise Act is permissible for self-assessment errors not recovered.

5. The Tribunal found no evidence supporting the Revenue's claim that the assessment was finalized. As the duty overpayment was not rectified, the refund was deemed appropriate. The Tribunal upheld the lower Appellate Authority's decision, dismissing the Revenue's appeal.