TMI Blog2016 (9) TMI 1018X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is also found that the respondents have submitted that they were forced to debit the duty, that they made the payment under protest at the time of preventive checks of the goods sold during the period 01.04.1997 to 27.09.1997 but I do not find any evidence proving forced recovery debit and also there is no endorsement on the TR-6 challans for payment under protest as prescribed under Rule 233B of the Central Excise Rules, 1944. The Hon’ble Supreme Court in the case of Mafatlal Industries Limited vs. UOI [1996 (12) TMI 50 - SUPREME COURT OF INDIA] and in the case of Sahkari Khand Udyog Mandal Limited vs. Commissioner [2005 (3) TMI 116 - SUPREME COURT OF INDIA] held that no refund can be made unless it is established that burden of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. 4. On the other hand, Ld. Authorised Representative for Revenue submits that as per the statutory provisions of Section 11B of Central Excise Act, 1944, refund application should be accompanied by documentary or other evidences to establish that incidence of duty has not been passed on. It is also specifically provided under Section 11B (2) that the refund amount shall be credited to the Welfare Consumer Fund unless, interalia, the burden of duty has not been passed on. He therefore, contends that the burden to prove that the duty incidence has not been passed on is squarely on the appellants and they have failed to do so and therefore the refund amount has to be credited to the Consumer Welfare Fund in accordance with statutory provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, I find that the respondents have submitted that they were forced to debit the duty of ₹ 2,81,635/- and ₹ 4,19,235/-; that they made the payment under protest at the time of preventive checks on 27.09.1997 of the goods sold during the period 01.04.1997 to 27.09.1997 but I do not find any evidence proving forced recovery debit and also there is no endorsement on the TR-6 challans for payment under protest as prescribed under Rule 233B of the Central Excise Rules, 1944. The Hon ble Supreme Court in the case of Mafatlal Industries Limited vs. UOI 1997 (890) ELT 247 (SC) and in the case of Sahkari Khand Udyog Mandal Limited vs. Commissioner 2005 (181) ELT 328 (SC) held that no refund can be made unless it is established that bu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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