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2016 (6) TMI 571 - CESTAT BANGALORE

2016 (6) TMI 571 - CESTAT BANGALORE - TMI - Refund of excise duty paid in excess - period of limitation - Held that:- Duty was paid in December 2006 and March 2007 but the goods were removed in March 2008 and the refund application was filed on 5.1.2010 which means that the refund application in the present case has been filed after more than three years which is beyond the period of limitation as per Section 11B enumerated above. It has been held in the case of Miles India Ltd Vs ACC [1984 (4) .....

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iew of the clear-cut position of law, the refund claim filed by the appellant is beyond the period of limitation. Further the appellant has also failed to establish that the said burden of duty has not been passed on to its buyer. Simply producing a copy of the ledger would in my opinion will not be sufficient to discharge the onus on the appellant. The learned Commissioner(Appeals) has rightly held that the appellant has not been able to prove that the disputed duty amount has not been passed o .....

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inal passed by the Assistant Commissioner. 2. Briefly the facts of the present case are that the appellant is a Public Sector Undertaking under the administrative control of the Ministry of Defence and are engaged in manufacturing of earth moving equipment, rail coaches, trailers and defence aggregates at the factories situated at Bangalore, KGF and Mysore. The appellant company had discharged excise duty and education cess @ 16% and 2% on equipment viz BH100-Dumper bearing Sl No. 1013,1014, 101 .....

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inance Act 2008 which came into force from 01.03.2008. In view of the changes in the Finance Act, the company was liable to discharge duty with education cess at 14.42% as against payment of 16.48% which resulted in excess payment of duty of ₹ 17,02,400/-. Hence the refund claim under Section 11B of the Act was filed with the jurisdictional Excise Officers but the same was rejected by the Assistant Commissioner of Central Excise vide his order dated 6.5.2010 and thereafter the appellant fi .....

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as held that the recovery of duty without the authority of law is unconstitutional and is not barred by limitation under the provisions of the Constitution of India. She further submitted that interpretation of law by the Supreme Court is binding on all the authorities below and the learned Commissioner erred in law in holding that the refund is barred by limitation. She further submitted that the learned Commissioner has wrongly invoked the principle of unjust enrichment in the present case. Th .....

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in the case of Maruthi Udyog Ltd reported in 2003(155 )ELT 523 wherein the Tribunal held that the details shown in the appellants balance-sheet and annual reports showing the disputed refund amount as receivable from the company are conclusive proof that the duty burden has not been passed on to the buyers. On the other hand, the learned AR submitted that the refund claim filed by the appellant is hopelessly time-barred and therefore both the authorities below have rightly rejected the refund .....

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ed by limitation. He further submitted that this is a statutory period prescribed under the Statute and any claim filed beyond the period of limitation is not maintainable being barred by limitation. Learned A.R. further submitted that the learned Commissioner (Appeals) has rightly invoked the principle of unjust enrichment as the appellant has failed to prove that the duty has not been passed on to its buyer by producing cogent and convincing evidence on record. 3. I heard learned counsel for t .....

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Central Excise] before the expiry of [one year] [from the relevant date] [[in such form and manner] as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of [duty of excise and interest, if any, paid on such duty] in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such [duty and interest, if .....

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