9911796707
TMI Blog1994 (1) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... allowing the part of the claim is not sustainable. I therefore observe that subject to payment of duty under protest stipulated under 233B is applicable in respect of assessees only who pay the duty and not the consumer. Therefore second proviso to sub-section 11B is not applicable in this case." 2. Briefly stated the facts of the case are that M/s. National Winders entered into an agreement with M/s. Vikas Engineering for manufacture of electric oscillating table fans under the brand name 'Cinni'. The appellants are sole buyers of the said fans. The department initiated proceedings against M/s. Vikas Engineering to treat the selling price of the fans at the hands of the appellants instead of the price at which M/s. Vikas Engineering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to their customers. The Asstt. Collector also held that the appellants would be eligible only for the duty paid by M/s. Vikas Engineering through PLA and the balance amount which was paid through RG 23A Pt. II by availing Modvat credit of the duty paid on the inputs cannot be sanctioned to the appellants. Against this order of the Asstt. Collector, the Department went in appeal. The Collector, Central Excise (Appeals) held that even though a person other than a manufacturer can file the refund claim under the new provisions of Section 11B, the second proviso to Section 11B(1) would apply only in a case of refund claim filed by the manufacturer since the concept of payment of duty under protest under Rule 233B is applicable only in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is applicable only if the application is filed by manufacturer; that the second proviso to Rule 11B(1) is applicable to all the cases of refund claims whether filed by a manufacturer who paid duty or by the consumer who had borne the incidence of such duty; that entire Section 11B(1) is applicable to the refund claims filed by any person claiming any duty of Excise; that the refund claim is not hit by unjust enrichment provision inasmuch as the price at which the fans were sold by the appellants remained the same even after the payment of excess duty; that the Asstt. Collector has come to the categorical conclusion that the burden of Excise duty paid under protest by M/s. Vikas Engineering was borne by the appellants and the same has not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 11B provides "Provided that the amount of duty of excise as determined by the Asstt. Collector of Central Excise under the foregoing provisions of this sub-section shall instead of being credited to the Fund be paid to the applicant if such amount is relatable to - (a) ... (b) ... (c) ... (d) ... (e) the duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person; A reading of this proviso shows that the word 'Any other person' for claiming refund has been used. This 'any other person' used in this proviso is to be read with 'duty of excise borne'. Second proviso to this Section provides that the limitation of six months shall not apply where 'any duty' has been 'paid' under protest. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not from the date of payment of duty but from the date of purchase of the goods in the case of a person other than the manufacturer. Having regard to this particular aspect I hold that second proviso to Section 11B(1) of the Central Excises and Salt Act, 1944 shall not apply to the case before me. 6. Claim for refund can arise only when duty is paid. Now whether payment of duty here in the proviso means the payment of duty by the manufacturer or does it mean the payment of duty by the claimant? If we presume that in the proviso any duty paid under protest refers to the duty paid by the assessee then there can be no dispute that any claimant can claim refund without any time limitation. However, if we presume that claim for refund ..... X X X X Extracts X X X X X X X X Extracts X X X X
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