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TMI Blog2024 (2) TMI 1249X X X X Extracts X X X X X X X X Extracts X X X X ..... rs M/s Bharat Broadband Network Ltd. by issuing a supplementary invoice, but the customer refused to pay it on the ground that central excise duty @ 10.3% was already paid as per the purchase order and the differential duty paid after calculating excise duty at the higher rate of 12.36% was not required to be paid by it. The appellant had borne the burden of the differential duty and had not passed it on to its customer or to anyone. Thus, the appellant s case falls squarely under Clause (e) of the third proviso to section 11B of the Central Excise Act, 19445, i.e., the duty of excise and interest paid on such duty were borne by the appellant manufacturer and it had not passed on the incidence of such duty and interest to any other perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (Appeals) after making a pre-deposit of Rs. 3,02,395/-. The Commissioner (Appeals), by order dated 01.08.2018, rejected the appellant s appeal. The appellant appealed before this Tribunal and by final order dated 03.09.2019 this Tribunal allowed the appellant s appeal. 3. Consequent upon the final order of this Tribunal, the appellant filed refund claim of Rs. 43,25,984/- on 14.11.2019. An SCN dated 12.02.2020 was issued to the appellant proposing to reject the refund claim on the grounds of limitation as well as unjust enrichment. After considering the submissions of the appellant, the Adjudicating Authority passed the OIO dated 22.04.2020 sanctioning the refund, but directing an amount of Rs. 37,92,744/- to be credited to the Consume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other higher rates. But payment has been released by BBNL as per terms and conditions/ price schedule of PO. 2. it is apparent from above, that no payment is outstanding against PO No. MM/PO/008/2013-14 dated 25.03.2014 PO No. MM/PO-012/2013-14 dated 25.10.2014, as per terms and conditions of PO. 3. This is issued with the approval of the Director (Plg.) . 5. Thereafter, the appellant had written off this amount in its books of accounts. A certificate from the Chartered Accountant to this effect is placed at page 46 of the appeal book. Learned Consultant, therefore, submitted that by no stretch of imagination can it be said that the appellant had passed on the burden of the differential duty to its customers. Therefore, the amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Clause (e) of the third proviso to section 11B of the Central Excise Act, 19445, i.e., the duty of excise and interest paid on such duty were borne by the appellant manufacturer and it had not passed on the incidence of such duty and interest to any other person. 9. The appellant is entitled to the refund of the amount sanctioned which should be paid to it instead of it being credited to the Consumer Welfare Fund. Needless to say the consequential interest must also be paid as per section 11BB. 10. The appeal is allowed and the impugned order is set aside. The refund amount along with interest under section 11BB should be paid to the appellant instead of being credited to the Consumer Welfare Fund. (Order pronounced in open court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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