TMI Blog2007 (3) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Hon ble Supreme Court in CCE, Jaipur v. M/s. Sangam Processors (Bhilwara) Ltd., 2002 (146) E.L.T. 254 (S.C.), holding that the length of galleries was not to be included in the chambers for the purpose of capacity determination, the initial provisional capacity determination @ 1.5 lac per chamber per month came to be accordingly finalized at the same rate. Since, in the meanwhile, the appellant had paid excess duty, as set out in the order-in-original on the galleries attached to the chamber installed in the factory, a refund claim was filed under Section 11B of the Act to get the amount back. The appellant had claimed refund of Rs. 5,22,000/-, being the duty paid on galleries during the months from June, 1999 to March, 2000 (exce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2B of the Act, which cast the burden on the assessee to prove that the incidence of duty had not been passed on, it was held that, since the appellant failed to discharge the onus, the doctrine of unjust enrichment debarred the appellant from taking the amount of refund. The order of the Original Authority directing the refund amount to be credited to the Consumer Welfare Fund was, therefore, upheld. 5. The learned Authorized Representative for the appellant contended that, since there was no provisional assessment made, no question of unjust enrichment would arise. He relied upon the decision of the Hon ble Supreme Court in Mafatlal Industries Ltd. v. Union of India reported in 1997 (89) E.L.T. 247 (S.C.), more particularly, on Paragraph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 5th of each calendar month as provided by sub-rule (3). Under sub-rule (4) of Rule 3 of the said Rules of 1998, pending verification of the declaration furnished by the independent processor, the Commissioner may determine the annual capacity of production on provisional basis and the annual capacity could thereafter be finally determined. Payment of such fixed duty amount, on the annual capacity of production base, does not involve provisional assessment under Rule 9B, which would apply, where the assessee is unable to determine the value of the excisable goods on account of non-availability of any document or information; or where the assessee is unable to determine the correct classification of the goods, as contemplated by Clauses ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of galleries was paid under protest, it would appear that the question of not passing of the duty burden was required to be determined in the contest of the presumption raised under Section 12B of the said Act which provided that, every person who had paid the duty of excise on any goods under the said Act, shall, unless the contrary is proved by him, be deemed to have passed on full incidence of such duty to the buyer of such goods. As rightly held by the authorities below in their concurrent findings, the appellant did not adduce any reliable material on record to show that the duty paid by it in respect of the galleries, had not been passed on to the buyers of the goods. There is, therefore, no valid ground made out for any interferenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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