TMI Blog2000 (11) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... cribed in Section 11B of the Central Excise Act. 3.Such claims were allowed by the Asstt. Collector and that order was affirmed by the Collector of Customs. On further appeal by the Revenue, the Tribunal disallowed the claim on the ground that the turnover discount could not be regarded as having any effect on assessable value and would not constitute an admissible deduction. The assessee having carried the matter on appeal to the Supreme Court, the Supreme Court by its Order dated 11-3-1997 held that the turnover discount is an admissible deduction. In the meanwhile, the Assistant Commissioner had directed refund of the amounts in view of the fact that the Tribunal had not stayed the order of the Commissioner who had confirmed the Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly paid by the manufacturer. 7.Section 11-B of the Central Excise Act which was introduced with effect from 17-11-1980, and was amended on 20-9-1991, sets out the conditions subject to which refund can be claimed. Application for refund made prior to 20-9-1991 are also required to be dealt with in accordance with amended provisions is required by proviso to 11B(1). Apart from requiring that claim be filed within the time allowed under the provisions of Act which is six months from the relevant date; that the application be in the prescribed form that it be accompanied by document or other evidence to establish that the amount of duty of excise in relation to which refund is claimed was collected from or paid by the claimant and incidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts which are relatable thereto cannot be credited to the fund having regard to the imperative language employed in the proviso which sets out that the amount as of the duty of the excise has determined by the Assistant Collector under Section 11B(1) "shall instead of being credited to the fund, be paid to the applicant..........................". 11.Where the claimant is a manufacturer the clause applicable would be clause (d) of the proviso to Section 11B(2). That clause refers to "duty of excise paid by the manufacturer if he had not passed on incidence of such duty to any other person". 12.The claim made by the manufacturer here is required to be considered under that provision. That provision has, of course, to be read along with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealing with refund claims to start an enquiry as to the price at which the goods had been sold to the ultimate consumer after the dealer who purchases the goods from the manufacturer, sells to its sub-dealer who in turn may sell to a retailer who in turn ultimately may sell the same to the actual consumer. The enrichment of the person, who has paid the duty and seeks refund would be unjust if he even while not suffering the burden of duty after having passed on the same to another obtains refund and retains such refund with him. There would be nothing unjust where the person who has paid duty and has not passed on that burden to another receives refund thereby reducing the burden which he was not required to bear but had bore. 15.The lan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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