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TMI Blog2003 (7) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commissioner (Appeals) has thus refused to accept this point holding that by addition to a proviso under the rule on 25-6-99, applying the provisions of Section 11B(2) to refund which fall due under this rule refund arising as a result of assessment cannot be paid to an assessee unless he discharges the burden u/s 11B(2). It is contended by the appellant that it has a vested right to the refund which arose when it paid the duty in excess and that any amendment to the statute cannot operate so as to deprive a person of his vested right. The judgment of the Supreme Court in Govinddas v. Income Tax Officer, [ 1975 (12) TMI 144 - SUPREME COURT] and of the Bombay High Court in Universal Drinks Pvt. Ltd. v. UOI, 1984 (4) TMI 59 - BOMBAY HIGH CO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessee could have taken refund of the suo motu of the excess. In this paragraph of the judgment, the Supreme Court cited paragraph 16 in Serai Kella Glass Works Pvt. Ltd. v. CCE [ 1997 (4) TMI 74 - SUPREME COURT] . We are not concerned with this aspect. The question arises why the assessee found it necessary to file claim for refund. It is thus claimed for refund that is under consideration by us. Accordingly, the department's appeal is allowed and the order of the Commissioner (Appeals) set aside and the adjudicating authority's appeal allowed. The assessee's appeal is dismissed. - HON'BLE GOWRI SHANKAR (T) AND G.N. SRINIVASAN (J), MEMBERS For the Appellant : Hitesh Shah and R.K. Pardeshi, DR For the Responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11B of the Act and ordered payment of the refund into the Consumer Welfare Fund. 2. The assessee appealed this order. The Commissioner (Appeals) held that the requirement contained in Section 11B had been specified with regard to duty paid on the goods cleared by the assessee from its depot, but not specified with regard to duty paid on goods cleared from the factory. He thus allowed part of the refund. Both the assessee and department are against that part of the order adverse to it. 3. We have heard the elaborate argument by the department and Counsel for the appellant from various dates. The Commissioner (Appeals) in his order allowing refund has relied upon the decision of the single member of the Tribunal in CCE v. Corona Cosmetics Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11B(2) will not apply to arising out of finalisation of provisional assessment. The Commissioner (Appeals) has thus refused to accept this point holding that by addition to a proviso under the rule on 25-6-99, applying the provisions of Section 11B(2) to refund which fall due under this rule refund arising as a result of assessment cannot be paid to an assessee unless he discharges the burden under Section 11B(2). It is contended by the appellant that it has a vested right to the refund which arose when it paid the duty in excess and that any amendment to the statute cannot operate so as to deprive a person of his vested right. The judgment of the Supreme Court in Govinddas v. Income Tax Officer, 1976 (103) ITR 123 and of the Bombay High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to deprivation. Even in cases where the burden is not passed on there is no prejudice; he could always get refund. 6. These sentences in our view do not permit consideration of the claim that the proviso under Rule 9B has to be so construed as not to apply to claim that arose prior to its enactment. There having been no vested right, conferred on a manufacturer for refund, the proviso does not take away any such right. The other judgment cited by the Counsel for the assessee therefore would not apply to the situation. 7. There was a feeble argument, it is next contended that was raised relying upon the judgment of the Madras High Court in Dollar Co., Madras v. GOI, 1986 (24) E.L.T. 245, that when the price prior to, and subsequent to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We cannot, as we are asked, to convert a possible presumption into a real fact. We do not find the Madras High Court's judgment an authority for the proposition canvassed by the assessee. It was concerned exemption excise duty with an interpretation of the Notification 162/66 and not whether that incidence of duty had been passed on or not. 8. Reliance is placed on paragraph 7 of the judgment of the Hindustan Metal, 2003 (153) E.L.T. 11 in support of the contention in order to say that the assessee could have taken refund of the suo motu of the excess. In this paragraph of the judgment, the Supreme Court cited paragraph 16 in Serai Kella Glass Works Pvt. Ltd. v. CCE, 1997 (91) E.L.T. 497 (S.C.) = 1997 (4) SCC 640. We are not concerned w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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