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TMI Blog2005 (7) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... ipments" under Chapter Heading 8543.00 and claimed concessional rate of duty at 10% ad valorem under Notification No. 51/93 dated 28-2-93. A show cause notice was issued seeking to deny concessional rate. The said classification list was however approved by the Assistant Commissioner of Central Excise, vide Order-in-Original No. 57/93/AC/DN VII dated 22-6-1993 allowing the concessional rate as claimed. Meantime, the Appellants were paying duty at full rate, without availing of the benefit of the aforesaid notification, under protest and claimed the refund of excess duty paid on 9-2-94. The appellants claimed that they did not pass on the incidence of duty to their buyers as they issued credit notes to their buyers representing the excess du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited supra the Hon'ble Supreme Court referred to its decision in Mafatlal Industries Limited reiterated that provisions of Section 11B are not applicable to refunds arising out of finalisation of Provisional Assessment under Rule 9B of Central Excise Rules. In Allied Photographics the Supreme Court brought out the difference arising out of duty paid under protest and out of finalisation of provisional assessments. The former types are covered under Section 11B and the later under Rule 9B of Central Excise Rules. It was argued that the refund in the present case arose out of the finalisation of provisional assessments, the authorities below erred in applying the provisions of Section 11B of the Central Excise Act. The ld. Advocate read the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision in the case of S. Kumar cited supra. 9.Heard both sides. 10.The appellant filed a Classification List for their product "Electroplating Plant and Equipment" seeking classification under Chapter Heading 85.43 read with Notification No. 51/93 which accorded a concessional rate of duty of 10% on those goods. The Department issued a show cause notice asking the assessee to explain why the concessional rate of duty should not be denied. On receipt of this notice the appellant started paying full rate of duty (25%) on the clearances under protest. In due course the show cause notice was adjudicated and the classification list was finally approved accepting the assessee's contention. Upon finalisation of the approval of Classification Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e concessional rate as claimed is ultimately rejected. But the net result of all this is that the payments are made both under protest as well as under provisional assessment. It is therefore, necessary to examine whether provisions of Section 11B apply to the claim for refund in this case. 14.Over the years the Supreme Court has varied its stand on the issue of unjust enrichment. In the case of Mafatlal Industries supra, it is held that bar of unjust enrichment does not apply to duty paid on goods captively consumed and duty collected without authority of law or unconstitutionally. Both these exception were rejected in Solar Pesticides - 2000 (116) E.L.T. 401 (S.C.) and in SRF Ltd. v. ACCE [2001 (134) E.L.T. 324 (S.C.)] respectively. In M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trine of restitution. 16.Referring to the decision in Mafatlal the court observed that refund of tax/duty wrongly paid can be claimed on the basis for doctrine of equity and a person demanding such restitution must plead and prove but he had paid such tax/duty and had suffered loss/injury. The burden is on the claimant to prove that tha tax/duty paid by him is not passed on to the customer or third party and that he is entitled to restitution. We reproduce these passages from the decision to emphasise the fact that the highest court gives emphasis on the issue of whether or not a person is entitled to restitution rather than the nitty gritty involved. 17.This position is even clearer when we see the Hon'ble Court's observation in para 48. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat credit notes raised by them in favour of the buyers prove that incidence of duty has not been passed on is in conflict with the Tribunal's decision in S. Kumar cited supra. It is not understood why an assessee who has passed on the incidence of duty to the buyer takes the trouble of raising a credit notes in favour of the buyer and then claims the refund of duty instead of advising the buyer to apply for a refund if he has not passed on the incidence of duty to his buyer. Section 11B has an elaborate machinery for the buyer to claim a refund. The fact is that an assessee who has passed on the incidence of duty becomes functus officio in so far as the claim for refund of that amount is concerned. Over the years several devices have been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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