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TMI Blog2008 (10) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... 5/2008 - Dated:- 15-10-2008 - Shri P. Karthikeyan, Member (T) Shri M. Saravanan, Consultant, for the Appellant. Shri M.K.A.K. Mohiddin, JDR, for the Respondent. [Order]. - M/s. Sandfits Foundries (P) Ltd. are engaged in the manufacture of brake drums. They cleared two consignments of brake drums in April and May 2002 to M/s. Bharath Earth Movers Ltd., Bangalore. Later on, it was noticed that the subject clearances to M/s. BEML were entitled to exemption in terms of Notification No. 63/95-C.E., dated 16-3-95. They successfully agitated this claim before the Commissioner (Appeals). They claimed refund of the exemption they had not availed in terms of the above Notification. An amount of Rs, 43,846/- was claimed. The original aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cals Ltd. v. CCE - 2006 (206) E.L.T. 392 (Tri.-Del.) had also laid down the same ratio. This decision of the Tribunal was upheld by the Punjab Haryana Court in their judgment reported as 2007 (219) E.L.T. 160 (P H) and the judgment of the Punjab Haryana High Court was upheld by the Apex Court in Commissioner v. Varinder Agro Chemicals Ltd. - 2008 (221) E.L.T. A82 (S.C.). 2. The learned JDR submits that the lower authorities had found that the facts of the case were different from those of the decisions relied upon by the appellants. The Commissioner (Appeals) had correctly relied on the ratio of the Ballarpur Industries Ltd. case (supra) in upholding the decision of the original authority. 3. I have carefully considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee is entitled to refund of duty paid in cash. The decision in the Ballarpur Industries Ltd. (supra) relied upon by the lower authorities had held as follows:- "A manufacturer after issuing invoices charging particular rate of duty, to the customers, and later on availing benefit of duty exemption notification, cannot claim refund of duty from the Department on the ground of having not actually collected it. The appellants after having issued invoices at the time of clearance of the goods, showing duty @ 20% ad valorem, cannot be heard contending that the incidence of duty had not been passed on to the buyers, as the buyers had not actually made payment of price of the goods to them. The subsequent issuance of the credit notes by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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