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TMI Blog2017 (5) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... udhary, Member(Judicial) Shri Debasish Mallik, Assitt. Company Secretary for the Appellant Shri K.Choudhary, Supdt.(AR) for the Revenue ORDER Per: Shri P. K. Choudhary Briefly stated the facts of the case are that the appellants are engaged in the repacking of lubricating oils, Hydraulic Brake Fluids, Anti-Freezing preparations under chapter 27 and 38 of First Schedule to the Central Excise Tariff Act, 1985. The appellant paid higher rate of duty of 14% ad valorem instead of 8% ad valorem during the period from 24.02.2009 to 31.08.2009. The appellant filed refund claim of excess payment of duty. The Adjudicating Authority rejected the refund claim of ₹ 14,06,532/- on the ground of unjust enrichment. It is obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee who did not bear the burden of the duty, though entitled to claim deduction, is not entitled for a refund as he would be unjustly enriched. It will be useful to refer to the relevant para of Mafatlal Industries v. Union of India (supra) in this connection. 108. (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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an application for refund is clear from paras 98 and 99 of the judgment of this Court in Mafatlal Industries (supra). We are bound by the said findings of a Larger Bench of this Court. The word buyer in Clause (e) to proviso to Section 11B(2) of the Act cannot be restricted to the first buyer from the manufacturer. Another submission which remains to be considered is the requirement of verification to be done for the purpose of finding out who ultimately bore the burden of excise duty. It might be difficult to identify who had actually borne the burden but such verification would definitely assist the Revenue in finding out whether the manufacturer or buyer who makes an application for refund are being unjustly enriched. If it is not poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e left in the realm of presumption. 34. In Civil Appeal No.7906 of 2002, we have already held that in the claim for refund of excess duty paid can be allowed only in case where the burden of duty has not been passed on to any other person, which includes the ultimate consumer as well. The findings in the Order-in-Original and the Order-in-Appeal are that the excise duty paid originally at the rate of 8.8 per cent was passed on from the Assessee-processor to the owner of the fabric and later to the customers. The point in this Appeal is also identical to that of Civil Appeal No.7906 of 2002. The above appeal of the Revenue is allowed. 4. In the present case, the appellant passed the duty incidence to its customers. There is no co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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