TMI Blog1996 (12) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... claim was allowed by the original authority consequent on the order-in-appeal passed by the CCE (Appeals) that abatements are allowable. The original authority examined the issue with reference to Section 11B relating to unjust enrichment and the said authority held as under : In this case, the percentage of turnover deduction that the buyer would be receiving from the assessee after the former crossed the slab limitation target fixed by the assessee was known, since the assessee had either given it in the invoice itself or passed it on, by way of credit notes to the buyers and adjusted the sale against subsequent supplies. (b) Section 11B(2) says that if the duty becomes refundable then the amount goes to the Consumer Welfare Fund. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal when based on order of the Collector (Appeals), refund due has been paid. This order of the original authority was reviewed by the Commissioner and in the appeal which was filed before the CCE (Appeals) against this order under Section 356E(2) of the CEA, 1944. The grounds taken in this application before the CCE (Appeals) are as under : While post auditing the above refund claims sanctioned by the Assistant Collector of Central Excise, Madras V Division, I find that the refund claim should have been rejected under the provisions of Sections 11B and 11D inasmuch as the duty incidence has not been borne by the manufacturer. Even if Tribunal orders are involved, the provisions of Section 11D are clear and statutorily binding on the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the incidence of such duty to any other person [Section 11B(2)(d)] then the refund goes to the assessee himself and as per Section 12B, the proof of not having passed on the incidence should be provided by the assessee. Verification of credit notes has established that unjust enrichment will not occur if refund as claimed is granted to the assessees, since it is actually suo motu refund. Therefore, the contention of the respondent to the effect that it is not their concern to find out as to whether the benefit has in turn been passed on by the dealer to the ultimate buyer, in my considered view, has considerable force. Against this order, the Revenue filed appeal and urged the following grounds. In this case, the assessees were pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view decisions taken in the matter of refund. Section 11A and Section 35E are two distinct and different provisions, having no restrictions on each other. CEGAT, Madras in its Order dated 10-6-1985 in the case of Collector of Central Excise, Madras v. Raman Boards Ltd. has held that Section 11A cannot be telescoped or super imposed over Section 35E with an over riding effect. (3) Refunds made under a valid order of a competent authority cannot be treated as erroneous refund; Section 11A will have no application in such cases. Only where the refund is made on account of mistaken calculation, technical or clerical error, the same will be recoverable by issue of notice under Section 11A by the same authority. (4) The Central Excise Law d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Central Excise under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant s account current maintained with the Commissioner of Central Excise; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; (d) duty of excise paid by the manufacturer, if he had not passed on the incidence of such duty to any other person ; ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly enunciate that once incidence of duty has been passed on to the buyer of the goods refund cannot be given to the assessee and it will be the buyer who will be eligible to the refund and by amendment to Section 11B in terms of the explanation, limitation of 6 months for claiming refund for the buyer has also been fixed with reference to the date of purchase of the goods by him. We observe that event under the Central Excise law which gives rise to cause of action for refund is payment of duty made in respect of the goods cleared from the factory. The claim of the assessee has to be related to this event of clearance of the goods on payment of duty. Once the assessee has passed on the duty burden at the time of clearance of the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X
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