TMI Blog2003 (7) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... lassification list in which it claimed total exemption from duty available in notification 57/95 to parts of windmills (manufactured). Before the classification list was approved, the appellant received a letter from the Superintendent asking it to pay duty on the goods at 15% ad valorem until the classification is approved finally. While finally approving the classification, the Assistant Commissioner, on 26-4-1995 accepted the entitlement to the exemption. The appellant thereupon filed the claim of refund of the duty paid by it on the goods cleared by it between 19-3-1995 and 11-4-1995. While the Assistant Commissioner accepted that duty had been paid in excess, he declined to pay the refund to the appellant on the ground that it had not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 26-3-1985, the date of filing of the classification list and 3-6-1985 when that list was approved was partly barred by limitation. The finding of the Assistant Collector that the claim for the period from 1-4-1985 to 27-4-1985 was barred by limitation was confirmed by the Commissioner (Appeals) and the Tribunal. The Supreme Court found that the duty paid by the assessee between the date of filing of the classification and its final approval "was obviously provisional subject to the result of the final approval of the officer concerned." It noted that this is the procedure prescribed in Rule 9B except that no bond was required in a case in the account before it. Therefore it concluded that the provisions of clause (e) of paragraph B of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot to be followed." However, subsequent to this decision of the Larger Bench, the Supreme Court in Metal Forging v. UOI - 2002 (146) E.L.T. 241, after considering both Coastal Gases and Samrat International had said, "It is clear that to establish that clearances were made on a provisional basis, there should be first of all an order under Rule 9B of the Rules and that to show that the goods were cleared on the basis of the said provisional basis, and payment of duty was also made on the basis of the said provisional classification. These facts in the instant case are missing, therefore, in our opinion, there is no material in the instant case to establish the fact that either there was a provisional classification or there was an order und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed by the statement that counsel for the revenue does not dispute that the decision in Mafatlal Industries governs the appeal. He further points out that in Mafatlal Industries, the Supreme Court has never said that cases of payment of duty under protest would not be governed by sub-section (2) of Section 11B and that there is nothing in that judgment which could justify such an inference. 5. Whatever our views in the matter, we are required to follow the judgment of the court in Hindustan Metal Pressing Works when it interprets the earlier judgment in Sinkhai Synthetics Chemicals (P) Ltd. At the same time, the departmental representative brings to our notice the judgment of the Supreme Court in Collector v. Citurgia Biochemicals Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of of not passing on the burden of duty to others." Paragraph 99(iii) summarises its conclusion. It went on to categorise claims for refund in two broad categories, one was there was wrong payment of duty by misinterpretation of the law and where there was excess payment of duty. It then went on to say that a claim for refund whether made in any other situations can succeed only if the petitioner/plaintiff alleges and establishes that he has not passed on the burden of duty to another person/other persons. In addition, the majority court held extensively as that produced in Paragraphs 83 and 84 in relation to the contentions raised by the counsel before it as to payment of duty under protest. If the court had intended to say that duty paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact the Supreme Court in Mafatlal Industries Ltd. in paragraph 91 when it says, "Similarly, no one will ordinarily pass on less excise duty than what is exigible and payable. A manufacturer may dip into his profits but would not further dip into the excise duty component. He will do so only in the case of a distress sale. Again, just because duty is not separately shown in the invoice price, it does not follow that the manufacturer is not passing on the duty. Nor does it follow therefrom that the manufacturer is absorbing the duty himself." This decision has been applied by the Tribunal in its decision in CCE v. Christine Hoden (I) Pvt. Ltd. (Order No. C-II/144/WZB/2003, dated 9-1-2003 [2003 (155) E.L.T. 271 (Tri. - Mumbai)]. 9. The app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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