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TMI Blog2003 (11) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... during the relevant time, the appellants procured the supplies from M/s. Bharat Petroleum (BPCL) on payment of price which included full excise duty as against the price inclusive of concessional rate prescribed in the notification. On establishing their claim before the jurisdictional Central Excise authorities for obtaining naphtha on payment of concessional duty under Notification No. 8/96-C.E., dated 23-7-96, they started obtaining the supplies of naphtha at the concessional rate from 17-12-1998 onwards. The present appeal relates to denial of refund of excess duty paid for the past period, when they did not have the L6 licence and the supplies were obtained on payment of price comprising full duty, without the cover of CT-2 certificate. 1.2 The claim was rejected by the lower authorities on two grounds :- (i) Time-bar :- The manufacturer (refinery) did not lodge any protest at the point of payment of duty, hence the claim filed beyond 6 months is time-barred. (ii) Locus standi of the appellants :- Only the manufacturer who has paid the duty can claim refund and not the appellants, who have not paid any duty to the Government. 2. The appellants are plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s claimed was collected from him, or paid by him. (emphasis supplied). 5.2 Excise duty being an indirect tax, the incidence of the tax is borne by the ultimate customer who consumes the goods. For the purposes of the Central Excise Law, such an ultimate customer is not a person, who can be said to have paid the duty, though in terms of economics he indeed has borne the incidence. The tax is paid by the manufacturer alone, at the point of clearance of the goods from the factory, in terms of Rules 9 and 49 of the Central Excise Rules, 1944. Rule 7 of the said rules inter alia provides that every person who manufactures excisable goods shall pay the duty ............... The Rule 7 further provides that duty has to be paid to the designated authority. Therefore, whenever there is a short-payment, recovery is also effected from the manufacturer by the concerned authority and not from the ultimate customer, though in economic terms, the duty has been paid by the ultimate consumer. 6. It must be remembered that demand and refund are merely two sides of the same coin namely assessment of goods to Central Excise duty. The goods in this case are naphtha . These have been subjected t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case that, besides a manufacturer any other person can also claim refund as provided under Section 11B of the Act. It is claimed that, since they have paid higher duty than was required they can claim refund of this excess duty. 8. As already noted by us, the duty on naphtha has been paid by the refinery in the jurisdiction of the Central Excise, where the refinery is located and the said duty is paid by appropriate debit in the Account current (PLA) which is maintained with the concerned Commissionerate, in the jurisdiction of which the refinery is located. Unless the said payments are reopened through the process of reassessment, no refund can generate. From the appeal, we note that, while the duty was paid by M/s. IOC, the appellants have purchased naphtha from M/s. BPCL who obtained the said naphtha from the refinery on transfer basis. So, the payment made by the appellants to M/s. BPCL is a payment of price of the product. The refund of duty can be claimed only against the duty paying documents in respect of which there is a positive finding of the competent authority accepting the fact that a part or the whole of duty shown to have been paid on the said documents is in ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to make such a claim. The appellants do not have any locus standi to make such a claim as rightly held by the authorities below. 10. We have already observed that, rigours of accounting require that all excess/short-payments have to refer to the payments made originally through the concerned account current (PLA). Short-payments or refunds must finally figure in the said PLA through appropriate reference/accounting entry. In case the refund as claimed by the appellants was to be accepted by Central Excise Assistant Commissioner in charge of the appellant s factory, there is no duty paying document pertaining to the appellants which can show that from Appellant s PLA any excess duty has been paid. The Assistant Commissioner in charge of the appellant s factory cannot sit in judgment over the correctness or otherwise of payment of duty made by the naphtha manufacturer. Therefore, the AC, Central Excise in charge of appellant s factory has no jurisdiction to entertain the refund claim in question. The claim has, therefore, been correctly rejected on the ground of locus standi. 11. The appellants want us to brush aside the above position by pleading that, when Section 11B speaks of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id circular the taxi owner (purchaser of saloon car) obtains the refund of excess duty paid on saloon cars cleared from the factory, from the manufacturer and not from the Central Excise. The manufacturer in turn claims the refund of the said amount from the Central Excise authorities having jurisdiction over the car manufacturing factory. This is one illustration of refund being paid to another person i.e. taxi owner, via the car manufacturer. The situation of the appellants is analogous. Therefore, we hold that it is only the refinery which has a locus standi to claim refund in accordance with law and not the appellants. 15.1 Besides the above situation, we also note that there are instances where besides the manufacturer, a person like a merchant-exporter can claim refund of Central Excise duty from the Central Excise authorities in charge of the manufacturer s factory. In that situation the manufacturer affixes a disclaimer on the body of the export document stating that he has not objection in case the amount of duty due to be refunded on completion of export, is paid to the merchant-exporter. 15.2 There are also few more situations where a person other than the manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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