TMI Blog2012 (5) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... appellate authorities, appeal dismissed - E/1097/04 - A/526/2011-WZB/C-II(EB) - Dated:- 7-6-2011 - Mr. Ashok Jindal, Mr. P.R. Chandrasekharan, JJ. Appearance: Shri.T.C. Nair, Advocate for appellant Shri.V.K. Singh, SDR, for respondent Per: P.R. Chandrasekharan 1. This appeal is directed against the order-in-appeal No.SDK(278)19/MV/2004 dated 30/01/2004 passed by the Commissioner of Central Excise (Appeals), Mumbai. In the said order, the Ld. Commissioner (Appeals) had rejected the appellant's claim for refund as barred by limitation of time, upholding the order passed by the lower adjudicating authority vide order dated 24/11/2003. 2. Briefly stated the facts of the case are as follows:- 2.1 The appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t's judgement, the appellant filed a refund claim dated 11/04/2003 claiming refund of an amount of ₹ 7,46,250/- being the excess duty excise paid by them on account of inclusion of galleries in the determination of the number of chambers. The refund claim was for the excess excise duty paid by them for the period from December 98 to February 2001.The said claim was rejected by the jurisdictional Deputy Commissioner on the ground that they had not challenged the final assessment based on the final determination of annual production capacity by the Commissioner of Central Excise vide order dated February 2001 and also on the ground that the claim was barred by limitation of time. 2.4 The appellant went in appeal against the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in the case of Mafatlal Industries Ltd., Vs. UOI, reported in 1997 (89) ELT 247 (SC), merely because a favourable order has been passed, it does not result in automatic refund and the claimant has to prove that the burden of duty has not been passed on to the third party. In the instant case, the appellant has not discharged this burden cast on them and on that ground also the claim is liable to be rejected. 5. We have considered the rival submission very carefully. 6. In the Om Textile Pvt Ltd., case relied upon by the party, the appellants therein had challenged the correctness of the order whereunder the determination of annual capacity of production was made. In the instant case, the annual capacity of production was final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... production be re-determined in accordance with the direction of the hon'ble apex Court in the case of SPBL Ltd., cited supra. In case under consideration, that is not the position and we find that the annual capacity of production was finally determined by the Commissioner vide order passed in February 2001, which was accepted by the appellant and the duty assessment was also finalized in accordance with the said order. Once the assessments have been finalized, which was not challenged, the question of filing a refund claim thereafter will not sustain as per the apex Court's decision in the Flock India case cited supra. 7. Thus, we find that in the instant case, refund claim is clearly time-barred as has been rightly held by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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