TMI Blog1997 (5) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... Salts Act, 1944. The Central Government, as per the budget proposals for the year 1979-80, reduced the rate of Excise duty on fertilizers with effect from 1-3-1979. The appellants, however, not being aware of the reduction of duty continued to pay duty on the finished product at a higher rate which was prevailant prior to 1-3-1979. Thereafter, realising that they had paid excess excise duty, filed a refund claim for the period 1-3-1979 to 15-3-1979 for Rs. 22,55,162.66. The Asstt. Commissioner, however, allowed a refund of Rs. 3,63,438.67, which was paid through P.L.A. Regarding the refund of Rs. 18,91,723.99 he held that this was paid through proforma account in Form RG. 23 Part II and as such under Rule 56A(3)(vi) of the Central Excise R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dustries v. Commissioner - 1994 (70) E.L.T. 722 (Tribunal) = 1990 (15) ETR at page 657 ibid. 3. The ld. D.R. Shri Gurdeep Singh contended that the question ultimately is whether the refund of the duty paid on the final product can be granted in cash. The amended provisions of Section 11B of Central Excise Act, 1944 would be attracted and the appellants have to show that they have not passed on the burden of duty to the buyers of their product. The ld. DR relied upon the judgment of the Larger Bench of the Supreme Court in Mafatalal Industries v. UOI - 1997 (89) E.L.T. 247 (S.C.) = 1997 (68) ECR 209. Ld. DR. also urged that the Deccan Sales Corpn. case supra is distinguishable. The High Court had found that the petitioners sought indirectl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lected on the raw materials .... exceeds the quantum of excise duty payable by that manufacturer on the goods produced. The High Court further observed cash refund is not to be equated with cash payment. The Andhra Pradesh High Court in the case of Coromandal Fertilizers v. UOI 1990 (48) E.L.T. 333 referred to the above observation of the Bombay High Court in upholding an order of the Tribunal following the same judgment. That was also a case where the Assistant Commissioner had found that the petitioner therein was eligible for refund but held that their claim for refund in cash or cheque was barred by provisions of Rule 56A(3)(vi)(b) that no credit shall be refunded in cash or cheque. The Andhra Pradesh High Court also did not acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6A(3)(vi)(b) of Central Excise Rules. In the result, it is held that the order of the lower authority denying refund in cash invoking provisions of the above Rule is not sustainable. The appellants will be entitled to refund as per law under Section 11B of Central Excise Act, 1944 as amended. 7. A contention has been made by the ld. Counsel that the amended provisions will not be attracted as this is a case of refund of amount of duty relatable to refund of credit of duty paid on excisable goods used as inputs covered by provisions of clause (c) of first proviso to Section 11B(2). However, this argument ignores the fact that their claim is for refund of excess duty paid on their final product which squarely falls under Section 11B of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
