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TMI Blog2018 (6) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... DB] - A/70830/2018-EX[DB] - Dated:- 7-3-2018 - SHRI ANIL CHOUDHARY, (JUDICIAL) And SHRI ANIL G. SHAKKARWAR, MEMBER(TECHNICAL) Shri Kapil Vaish (CA) for the Appellant (s) Shri Rajeev Ranjan (Joint Commr.) (A.R.) for the Revenue Per ANIL G. SHAKKARWAR : Present appeal is arising out of Order-in-Appeal No.GZB-EXCUS-000-APP-15-14-15 dated dated 19.05.2014 passed by Commissioner(Appeals), Customs, Central Excise Service Tax, Ghaziabad. 2. Brief facts of the case are that during the period from 14.5.1986 to 30.6.1990 appellant paid duty on crimped uncut waste and cut and process waste under protest through the letter of protest dated 6.5.1986 which was acknowledged by central excise authorities on 14.5.1986. The appellant submitted on 7.4.1997 an application for refund of duty ₹ 1,11,11,941/- paid under protest for the above stated period from 14.5.1986 to 13.6.1990. The said refund application was rejected by jurisdictional Deputy Commissioner of Central Excise through order-in-original dated 22.11.2013. The discussion and finding of original authority are reproduce below:- 10. I have carefully gone through the case records, Writ Tax No.688/13 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to reproduce the relevant legal provisions of the Central Excise Rules, 1944, for payment of duty under protest, as it stood at the time of payment of such duty. 233B. Procedure to be followed in cases where duty is paid under protest. Where an assessee desires to pay duty under protest he shall deliver to the proper officer a letter to this effect and give grounds for payment of the duty under protest. (2) On receipt of the said letter, the proper officer shall give an acknowledgment to it. (3) The acknowledgment so given shall, subject to the provisions of sub-rule (4), be the proof that the assessee has paid the duty under protest from the day on which the letter of protest was delivered to the proper officer. (4) An endorsement Duty paid under protest shall be made on all copies of the gate pass, the Application for Removal and Form R.T. 12 or Form R.T. 13, as the case may be. (5) In cases where the remedy of an appeal or revision is not available to the assessee against any order or decision which necessitated him to deposit the duty under protest, he may, within three months of the date of delivery of the letter of protest, give a detailed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter. Further the Appeal of the party in respect of O in O dated 18.07.1985 issued by F.No.V(18)75/VC/85 of the then Assistant Collector, Central Excise, Division-III, Ghaziabad classifying Crimped Uncut Waste Cut and Processed Waste under Tariff item No.18(I), was decided by the Collector (Appeals) vide O in A No.188/91 dated 03.05.1991 in favour of the party, which attained finality as no appeal has been filed against the said O in A either by the department or the party. 16. As regards to the Hon ble CEGAT Final Order No.736-738/96-D dated 12.12.1996, the same was made in appeal against O-in-O No.27-29/Collector/87 dated 30.10.1987, which in turn decided three Show Cause Notices V(15)(22) 50-off/Adj/85/1482 dated 21.3.85, V(15)(18) off/174/85/4218 dated 6.08.1985 V(15)(18-I) Seiz/173/85/4635 dated 20.8.1985. I find that all the Show Cause Notices alleges clandestine removal/seizure of Crimped Uncut Waste Cut and Processed Waste and are not related classification of the same under Tariff Item No.18(I), even though they might be an off shoot of such classification. I also find that the Hon ble Tribunal vide their Final Order No.736-738/96-D dated 12.12.1996 allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the said products under Tariff Item No. 18(IV) by the Collector (Appeals) vide O-in-A No.188/91 dated 3.5.1991 and after that no protest or reason for protest survived. This is also corroborated from the fact that the party claimed refund of differential duty amounting to ₹ 10,69322.95 on 5.8.1991, the amount which was earlier appropriated by the department as differential duty for such products cleared during the pendency of finalization of classification list by the then Assistant Collector, Central Excise, Division-III. The said claim was sanctioned and accepted by the party, without claiming that dispute of such classification was still pending till disposal of appeal against O-in-O No.27-29/Collector/87 dated 30.10.1987 before the Hon ble CEGAT, which was decided vide Final Order No.736-73/96-D dated 12.12.1996. It is an accepted legal maxim that one cannot approbate and reprobate at the same time. In view of the above, the party is stopped from taking stand that classification dispute was still pending till the CEGATs Final Order No.736-738/96-D dated 12.12.1996. 19. I, thus, find that the classification dispute between the department and the party ended wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied Photographic [166 ELT 3(SC three member bench)] it has been held by the hon ble Apex court that even if there is no change in price before and after assessment (i.e. before and after imposition of duty), it does not lead to the inevitable conclusion that incidence of duty has not been passed on the buyer, as such uniformity may be due to various factors. Thus even if price remain same before and after imposition of duty, the assessee has to establish that he has not passed on burden of duty to the buyer. However, in the present case appellant has not brought any evidence on record to prove that incidence of duty under claim of refund has not been passed on by them to another person. Thus I am inclined to agree with the adjudicating authority that appellant have failed to substantiate in this case that the duty claimed as refund has been borne by the appellants themselves. 3. Aggrieved by the said order the appellant is before this tribunal. The ld.Counsel for appellant has submitted that the said refund claim has been rejected on two grounds. One is that the same is barred by limitation and other is appellant could not establish that the duty burden was not passed on to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted similar AR1 were filed for entire period and the duty was paid under protest and such duty burden was not stated in the invoice and the customers were required to make payment as stated in the invoice and this is why the duty burden was not passed on to the customers, but it was borne by the appellant. He has further relied on the ruling by the Hon ble Supreme Court as reported in 2004 (173) ELT A 235 in the case of commissioner v. Alstom Ltd. In the said case the Hon ble Supreme Court dismissed the civil appeal No.D-16473 of 2004 filed by the Commissioner of Central Excise, Allahabad against the order passed by this Tribunal bearing Final Order No.677/204 dated 8.4.2004 reported at 2004 (168) ELT 511 (Tri.-Del.) which is Alstom Ltd. v. CCE, Allahabad. He has further submitted that this tribunal in the said final Order dated 8.4.2004 reported at 2004 (168) ELT 511 has held that if the buyers have not paid duty as entered in the invoices issued by the manufacturers while clearing the goods on payment of duty, the incidence of duty is not passed on to the buyer. He has submitted that the duty was borne by appellant through assessment in AR-1 whereas through invoice it was n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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