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TMI Blog2016 (7) TMI 1022X X X X Extracts X X X X X X X X Extracts X X X X ..... . 71/2008-09-R dated 17/12/2008, passed by the Assistant Commissioner of Customs, Central Excise & Service Tax, Hyderabad 'J' Division. The said order was reviewed by the Commissioner of Customs, Central Excise & Service Tax, Hyderabad-III Commissionerate, Hyderabad, and as the order appeared to be not legal and proper, an appeal was filed before the Commissioner(Appeals-III), Customs, Central Excise & Service Tax, Hyderabad. The Commissioner(Appeals-III) in his OIA No 12/2009(H-III)(D) CE dt. 09/09/2009 (in Appeal No.08/2009(H-III)(D)CE had set aside the OIO passed by the Assistant Commissioner and directed that the issue shall be decided afresh basing on the finding given in his order by issuing a show-cause notice und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal No. E/451/2010 had been filed by the appellant contesting the order wherein the matter had been remanded on the ground that Commissioner(Appeals) has no powers to remand. Another appeal No.E/475/2012 had been filed wherein this Tribunal had given stay against recovery of the refund already sanctioned to the appellant. That was a consequence of appeal filed by the Revenue against the sanction of refund. The third appeal No. E/26586/2013 has arisen as a result of the proceedings under Section 11 A of Central Excise Act, 1944 which had also been simultaneously been taken up. 3. The issue involved is whether appellant is eligible for refund in respect of higher duty paid on lead acid batteries cleared to M/s. ITI Ltd. (Government of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by appellant against this order before Commissioner(Appeals)' was dismissed for noncompliance of order for predeposit of 50% of amount vide order dated 22/03/2013. Against this order, the appellant has filed appeal No.26586/2013. This in a nutshell is the raison d'être for these three appeals. 7. We have heard both sides. 8. In the order passed by the Assistant Commissioner dated 17/12/2008, the refund claims were sanctioned on the following observations:- There are many decisions of the Tribunal holding that when there is price escalation, the assessment would be deemed provisional and the refund claim would not be hit by time bar. It is pertinent to note that when there is upward revision, the respondent has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from other customers and thus held that the case is hit by unjust enrichment. 10. We thus find that the crux of the appeals is to analyse whether it is sufficient that the refund claimant proves that he has not passed on the incidence of duty to his customer or whether he has also to prove that the customer in turn has not passed on such incidence to other persons. We find that this issue is no longer res integra. The Hon'ble Madras High Court in the case of Addison & Co. vs. CCE, Madras [2003-TIOL-396-HC-MAD-CX] has observed as follows:- 13. Although, the consumer is referred to in the Consumer Welfare Fund, constituted under Section 12C, the Excise Act is not primarily concerned with the actual consumer of the manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was not required to bear but had bore. 15. The language employed in Section 11B therefore is not capable of being construed as having reference to the ultimate consumer of the product. What has to be demonstrated by the claimant is that the burden of the duty paid had not been passed on by him to any other person. The passing on will occur only if the person who claims refund of duty as shifted the burden to another. There can be no passing on of the incidence of the duty if he merely reduces his burden by receiving the refund. The possibility that the dealer who has obtained goods from the manufacturer may charge to his buyer the full amount of the duty ignoring the refund received by the manufacturer cannot be a ground for denying ref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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