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TMI Blog2018 (11) TMI 458X X X X Extracts X X X X X X X X Extracts X X X X ..... mmon order. 2. Briefly the facts of the present case are that the appellant is involved in the manufacture and sale of automobile tyres, tubes and flaps falling under Chapter heading 40 of the Central Excise Tariff Act, 1985. Certain types of "CEAT" branded tyres were procured by the appellant from M/s. Rado Tyres Ltd., Kothamangalam, Ernakulam a registered manufactures of tyres. The appellant filed a refund claim being the excess duty paid by M/s. Rado Tyres Ltd. on the goods cleared amounting to Rs. 8,19,996/- during the period April 2011 to March 2012 and Rs. 10,53,089/- during the period April 2012 to March 2013 respectively. The lower adjudicating authority rejected the refund claim as inadmissible in terms of provisions of Section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the decision of the Apex Court in the case of CCE Vs. Addison & Co. Ltd., 2016 (339) ELT 177 (SC) wherein it has been held that the assessee has failed to prove that incidence of tax has not been passed on to the ultimate consumer. He further submitted that as far as the third point of limitation is concerned, the Commissioner (A) has not given any finding. Learned counsel further submitted that as far as unjust enrichment is concerned, the Commissioner (A) has wrongly observed that the appellant has not produced any documentary evidence to prove that incidence of duty has not been passed on to any other person including the ultimate buyer. Learned counsel produced before me the certificate of Chartered Accountant who after auditing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant date i.e. purchase date, and is hit by limitation of time is unsustainable. He further submitted that had appellant filed a refund claim within one year from the date of purchase then it would have been held as premature and it is only after the finalization of assessment of M/s. Rado Tyres that the appellant is in a position to file the refund claim and from the date of finalization of the assessment, the present claim is within limitation. He further submitted that Rule 7 of the Central Excise Rules, 2002 is applicable to the principal manufacturer i.e. CEAT and hence refund is not time barred as held in 2008 (231) ELT 359. 5. On the other hand, the learned AR defended the impugned order and submitted that since the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly certifying that the incidence of duty has not been passed on to the buyer. The decision of the Apex Court in the case of Addison & Co. Ltd. (supra) is not applicable in the present case because the appellant has produced on record the certificate of Charted Accountant which was not there before both the authorities below. Further, the original authority will also consider the issue of limitation of one year which will start from the date of finalization of the assessment and not from the date of purchase made by the appellant. With these observations, I remand back both the appeals to the original authority that will pass de novo order regarding the refund claim after considering the observations made by me above and will dispose of all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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