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TMI Blog2014 (7) TMI 891X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 11B was not challenged by the revenue before the first appellate authority, such a ground cannot be urged for the first time in an appeal before this Court. As a matter of fact, the ground was not even urged in the form of a cross objection before the Tribunal. The assessee is the recipient of the taxable service provided by RGTIL and had borne the incidence of service tax. Hence, the assessee is entitled to claim a refund of excess service tax paid consequent upon the downward revision of the transmission charges payable by the assessee to RGTIL in terms of the determination made by the Regulatory Board. The fact that the assessee has not passed on the burden has been amply established in the order of the adjudicating authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 65(105)(zzz) of the Finance Act, 1994. Invoices were raised by RGTIL upon the assessee on the basis of the tariff which was initially notified by the statutory board. Subsequently the initial tariff was subjected to downward revision by the statutory board. RGTIL had, however, in the meantime collected excess transmission charges from the assessee for the supply of natural gas. The difference was credited by RGTIL to the account of the assessee by raising credit notes. Tax had been initially remitted by RGTIL on the basis of the original tariff fixed by the board. Since the tariff had been revised downward, the assessee applied for the refund of a proportionate part of the service tax remitted by RGTIL and which was borne by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of the determination made by the statutory board, the assessee was entitled to maintain the refund application. The appeal was accordingly allowed and the order of the Commissioner (Appeals) was set aside. As noted above, two questions of law have been raised on behalf of the revenue. The first question which falls for determination is whether the Tribunal had erred, as the revenue would assert, in allowing the refund claim without considering the issue of limitation under Section 11B of the Central Excise Act, 1944. In dealing with this submission, it would be necessary to note at the outset that the Assistant Commissioner, Bareilly while sanctioning the refund claim in his order dated 23 December 2011 specifically came to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now assert to the contrary and to urge a point which was not raised in the grounds of appeal filed by the revenue while assailing the order of the adjudicating authority sanctioning the refund. In Commissioner of Customs, Mumbai vs. Toyo Engineering India Limited2 the Supreme Court has held that the revenue could not be allowed to raise submissions for the first time in a second appeal before the Tribunal. The same principle has been followed by a Division Bench of this Court in Bajaj Hindusthan Ltd. vs. Union of India3 in holding that in an appeal before this Court, a ground which was not raised before and decided by the Tribunal, would not be permitted to be urged. In our view, once the finding of the adjudicating authority that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service recipient is not entitled to file a refund claim under Section 11B. This submission is clearly in the teeth of the law laid down by the Supreme Court in Mafatlal Industries Ltd. (supra). The principle which has been enunciated in the judgement is as follows: (iii) A claim for refund, whether made under the provisions of the Act as contemplated in Proposition (i) above or in a suit or writ petition in the situations contemplated by Proposition (ii) above, can succeed only if the petitioner/plaintiff alleges and establishes that he has not passed on the burden of duty to another person/other persons. His refund claim shall be allowed/decreed only when he establishes that he has not passed on the burden of the duty or to the extent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessee has not passed on the burden has been amply established in the order of the adjudicating authority. This finding was not challenged by the revenue in the grounds of appeal before the first appellate authority or for that matter in the form of cross objections before the Tribunal. The finding of fact of the first appellate authority to the effect that the prices of urea are prescribed by the Government and that the final product manufactured by the assessee is exempted from the payment of excise duty and there would be no occasion for unjust enrichment has not been questioned. In that view of the matter, we find no reason to entertain the appeal by the revenue which has not raised any substantial question of law. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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