TMI Blog2021 (10) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... much as the claim of refund is concerned. In Addison Co. Ltd., [ 2016 (8) TMI 1071 - SUPREME COURT] , the Hon'ble Apex Court has held that the assessee has admitted the incidence of duty was originally passed on to the buyer. No material was placed on record to show that the buyer to whom the incidence of duty was passed on by the assessee did not pass it on to any other person. It has been thus held that the sine qua non for a claim for refund as contemplated in Section11-B of the Act is that the claimant has to establish that the amount of duty of excise in relation to which such refund is claimed was paid by him and that the incidence of such duty has not been passed on by him to any other person - the Hon'ble Apex Court has observed that the refund of excess duty paid can be allowed only in cases where the burden of duty has not been passed on any other person including the ultimate customer as well and moreover Hon ble Apex Court was considering the case of normal refund and not adjustment at the time of finalization of provisional assessment. Hence, it is distinguishable. Revenue cannot pick and choose the assessment years for challenging the orders having sim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff Act, 1985. The assessee cleared the goods to various depots situated throughout India. The goods were removed from factory gate on stock transfer basis to these depots from where they were sold to dealers, who were their first customers as and when demand arises. The assessee offered various discounts for the dealers. The value of the goods on which duty was to be discharged was not known at the time of clearance from the factory gate as required under Section 4 of the Central Excise Act, 1944 [ Act for short]. Subsequently, at the time of finalization of the provisional assessment for various periods, it was noticed that the assessee had paid duty more than what was payable on final assessment and they filed refund claims for the excess payments. The assessing authority allowed the sanction of the refund claims. The adjudicating authority held that the respondent is eligible for refund and directed to make separate application for refund as per the order in original on finalizing the assessment for the assessment years involved herein. Accordingly, the respondent makes separate refund application which were considered and sanctioned. 3. Being aggrieved by the same, the Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether the incidence of duty was passed on to the ultimate buyer/customer for claiming refund in the provisional assessment. Thus, the learned counsel argued that the judgment of the Commissioner of Central Excise, Mumbai-II V/s. Allied Photographics India Ltd., [2004 (166) E.L.T. 3 (SC)] is not applicable to the facts of the present case. 7. Learned counsel for the assessee submitted that the refunds released pursuant to finalization of provisional assessments by the Department have been challenged in this appeal relating to the Assessment Years 2000-01; 2009-10; 20010-11; 2011-12 and 2012- 13. The factual finding that the assessee/manufacturer had borne the incidence of duty has been admitted in the refund release orders and the same has been confirmed by the Commissioner [Appeals] which has been upheld by the CESTAT. Learned counsel submitted that the judgment of Indian Telephone Industries Ltd., supra which has been referred to by the Tribunal has been confirmed by this Court dismissing the appeals filed by the Revenue and the same has reached finality. Hence, the issues involved herein, are squarely covered by the judgment of this Court in Indian Telephone Industr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods after their removal] for assessing the duty; The proper officer may, either on a written request made by the assessee or on his own accord, direct that the duty leviable on such goods shall, pending the production of such documents or furnishing of such information or completion of such test or inquiry, be assessed provisionally at such rate or such value [which may not necessarily be the rate or price declard by the assessee] as may be indicated by him, if such assessee executes a bond in the proper form with such surety or sufficient security in such amount, or under such conditions as the proper officer deems fit, binding himself for payment of the difference between the amount of duty as provisionally assessed and as finally assessed.] [2]. Xxxx (3) The Commissioner may permit the assessee to enter into a general bond in the proper Form with such surety or sufficient security in such amount or under such conditions as the Commissioner approves for assessment of any goods provisionally from time to time: Provided that, in the event of death, insolvency or insufficiency of the surety or where the amount of the bond is inadequate, the Commissioner may, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , provided for making of refund. On the other hand, section 11B(1) dealt with claiming of refund by the person who has paid duty on his own accord. In this connection, section 4 of the said Act is relevant. In the case of Bombay Tyre (supra) it has been held that section 3 of the Act refers to levy of duty whereas section 4 dealt with assessment. Assessment means determination of the tax liability. Under the Act, duty was payable by the manufacturer on his own account. Hence, under section 11B(1), such a person had to claim refund by making an application within six months from the relevant date except in cases where duty was paid under protest in terms of the proviso. However, even in such cases, the person claiming refund had to pay the duty under protest in terms of prescribed rules. A bare reading of section 11B(1), therefore, shows that it refers to claim for refund as against making of refund by the proper officer under rule 9B. 12. In para 17 of the said judgment, it is observed as under: .. In the present case, the refund claim is made by a buyer and not by the manufacturer. The buyer says that he has not passed on the burden to its dealers. The buyer has bough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stead of crediting to the fund, the refund amount determined under Sub-rule[3]. Thus, it cannot be held that Rule 7[6] cannot be equated to Rule 9[5] inasmuch as the claim of refund is concerned. It is obvious that in Indian Telephone Industries Ltd., supra, which has been referred to by the Tribunal for determining the issue on hand being confirmed by this Court, the same is applicable to the facts of the case. 14. In Addison Co. Ltd., supra, the Hon'ble Apex Court has held that the assessee has admitted the incidence of duty was originally passed on to the buyer. No material was placed on record to show that the buyer to whom the incidence of duty was passed on by the assessee did not pass it on to any other person. It has been thus held that the sine qua non for a claim for refund as contemplated in Section11-B of the Act is that the claimant has to establish that the amount of duty of excise in relation to which such refund is claimed was paid by him and that the incidence of such duty has not been passed on by him to any other person. 15. In the aforesaid judgment, the Hon'ble Apex Court has observed that the refund of excess duty paid can be allowed only in ..... 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