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2011 (10) TMI 553 - HC - Central ExciseDenial of refund claim - Whether the refund of excess debit of credit equal to excise duty paid on spares and components are relevant for the purpose of Section 11B of the Central Excise Act, 1944 - Held that:- Claim for refund of duty can be made in terms of Section 11B of the Central Excise Act, 1944. By that provision, any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise before the expiry of six months from the relevant date in such form and manner as may be prescribed. The application shall be accompanied by such documentary or other evidence including the documents referred to in Section 12A as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from or paid by him and the incidence of such duty had not been passed on by him to any other person. The claim for refund would arise only if the incidence of duty had not been passed on. As the onus is on the assessee to prove that the incidence of duty had not been passed on to the customers, the question of claim of refund could not be entertained. For that reason, both the Commissioner of Central Excise (Appeals) and the CESTAT came to the conclusion that the application under Section 11B is to be rejected and they rightly rejected the application. The finding of the Commissioner of Central Excise (Appeals) that in view of the fact that the assessee was unable to prove that the duty incidence had not been passed on, he ordered the sanction of the claim and consequently credited the same to the Consumer Welfare Fund. This finding of the Appellate Authority was confirmed by the CESTAT. As the assessee has not established the right to refund of claim in terms of Section 11B, the substantial questions of law raised by the assessee require no consideration and for that reason, the appeal must fail. Decided against assessee.
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