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TMI Blog2007 (4) TMI 507X X X X Extracts X X X X X X X X Extracts X X X X ..... y s appeal setting aside the order of original authority rejecting 4 refund claims. Appeal No. 1256/2004 is also by the Department and is against the order of Commissioner (Appeals) No. YPP/63/SRT/2004, dated 31-1-04 (arising out of Order-in-Original No. SRT-IV/Adj/30/03/R, dated 23-10-03). 2. The issue involved in these appeals is the same and therefore is being dealt with by a common order. 3. The relevant facts, in brief, are as follows :- (a) The appellants (sic) are manufacturer of liquid nitrogen, ammonia and urea. They were procuring Nitrogen Gas Liquified (NGL) at concessional rate of duty for use in the manufacture of ammonia and urea by producing CT-2 certificates issued by the jurisdictional Supdt. of Central Excise. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the case of Swarup Fibre Industries Ltd. v. CCE, Meerut, reported in 2000 (120) E.L.T. 510 (T) is also important in this regard. In this case, the Tribunal has held that when no change takes place in the price structure of the product after increase in duty, it cannot be said that the incidence of duty has been passed to the customer. The ratio of the above judgment is applicable to the case of appellants as their finished product is sold under price control. The fact that whether the exemption on inputs was available or not was immaterial to their case and the price of finished product was not affected by this. Accordingly, refund of duty paid in excess on inputs would not be hit by unjust enrichment. Moreover, it is on record that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9,000/- only and withheld the balance amount of Rs. 1,12,94,686/-. He has also held the fact that amount has not been paid by the appellant to M/s. HPCL at the time of filing the refund claim by the appellant, is of no relevance. 5.1 The learned Advocate appearing for the appellant submits that there is no dispute about the eligibility of refund in this case; when M/s. HPCL raised invoices for value and duty on the appellant, the liability to pay the duty by the appellant is created; the duty in respect of the consignments already stands paid to the Central Government. Actual payment by the buyer to the seller is not relevant. M/s. HPCL has became ineligible for refund on the ground that they raised invoices and therefore they are held to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to be refunded. (c) The goods have been cleared from ONGC to M/s. HPCL and then by M/s. HPCL to the appellants. (d) Once in the invoices, M/s. HPCL has indicated the duty amount, it is presumed that they have passed on the burden of duty on the buyer and therefore, are ineligible for refund. 6.2 Payment of duty by a manufacturer is not linked to the actual realization of sale proceeds or the duty amount by the said manufacturer from the buyer of the goods. Similarly, in case of short levy of any duty, the same is not decided based on whether the person who is required to pay the duty has collected the same or can collect the same from his buyers. In other words, payment of demand of duty is not linked to realization. Si ..... X X X X Extracts X X X X X X X X Extracts X X X X
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