TMI Blog2016 (3) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, hold that the learned Commissioner (Appeals) is in error in rejecting the refund, holding that once duty is shown in invoice, it is deemed to be passed on, as the presumption is rebuttable. Thus, the appeal is allowed. The assessee, is held, entitled to refund. - Decided in favour of assessee - E/1150/2005-Mum - Final Order No. A/2230/2015-WZB/SMB - Dated:- 10-7-2015 - Shri Anil Choudhary, Member (J) Shri Mihir Mehta, Advocate, for the Appellant. Shri H.M. Dixit, Assistant Commissioner (AR), for the Respondent. ORDER [Order]. - The appellant, M/s. Larsen Toubro Ltd. is in appeal against Order-in-Appeal No. AT/M-II/125/04, dated 29-12-2004 passed by the Commissioner of Central Excise (Appeals), Mumbai-II whereb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Act. 2.1 Being aggrieved, the appellant preferred appeal before the learned Commissioner (Appeals), who rejected the appeal upholding the Order-in-Original observing that the duty shown in the invoice is deemed to be passed on to the buyer under Section 11B of the Act. 2.2 Being aggrieved, the appellant is in appeal before this Tribunal. 3. The learned Counsel for the appellant takes me through Section 11B(1), which provides that :- Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stomers or from any other entity. The certificate of C.A. further states that amount of ₹ 1,70,821/- is appearing as refund receivable in the books of account of the assessee. 3.1 The learned Counsel further relies on the ruling of the Hon ble Madras High Court in the case of Addison Co. v. Commissioner of Central Excise, Madras - 2001 (129) E.L.T. 44 (Mad.), wherein it has been held as follows :- 14. Section 11B is intended to prevent a person who has paid duty or borne it initially from receiving the refund of a part or whole of the duty if he has already passed on that burden of the duty paid by him to another as that would result in unjust enrichment. It is that amount which is required to be credited to the Consumer Welf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd received by the manufacturer cannot be a ground for denying refund to the manufacturer. 16. The word buyer used in Section 12B also cannot be construed as referring to the ultimate consumer. The buyer referred to therein in the normal circumstances is the buyer who buys the goods from the person who has paid duty. 17. The primary object of the provision which is intended to deter or prevent unjust enrichment is to prevent enrichment of the person who has paid duty and who seeks refund of the same. It is not directed at the buyer who has entered into arms length transactions with manufacturer and has sold the goods to sub-dealers, retailers or consumers. 18. The Tribunal therefore was clearly in error in holding that despite th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal in the case of S. Kumar s Ltd. v. Commissioner of Central Excise, Indore - 2003 (153) E.L.T. 217 (Tri.-LB). The larger Bench has considered the judgment of Madras High Court in Addison Co. [2001 (129) E.L.T. 44 (Mad.)] and also the ruling in the case of Addarsh Guar Gum Udyog - 1997 (93) E.L.T. 120 (sic), of this Tribunal along with other judgments wherein, the fact that job worker received raw materials (grey fabrics of cotton) from one M/s. DTE and after processing the same, the appellant had cleared the fabrics on payment of additional duty in lieu of Sales Tax @ 8% ad valorem under the Additional Duties of Excise (Goods of Special Importance) Act, 1957. The total duty so paid was ₹ 8,43,041/-. Later on realizing that under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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