TMI Blog2004 (9) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise Act; that they had changed the value of "d" (the pinion center distance of the pinion stand in millimeter), after the initial determination of their capacity by the Commissioner; that their request to re-determine the annual capacity of production on account of change in the value of the "d" was rejected by the Commissioner under Order-in-Original dated 24-5-2000; that on appeal filed by them the Tribunal, vide Final Order No. A/129-133/2001-NB(D), dated 14-2-200l [2001 (129) E.L.T. 751 (T)] allowed their appeal with consequential relief if any; that consequently they had filed refund claim on 22-8-2002 for Rs. 10,29,694/- which has been sanctioned by the Assistant Commissioner under Order-in-Original dated 14-11-2000; that the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turer is wholly unconnected with the quantity of the goods cleared by them; that "under the compounded levy scheme under which they were required to pay duty in lumpsum, determined on the basis of their production capacity under Section 3A of the Act irrespective of the fact whether they were able to recover that much duty from their customer or not. 3. Countering the arguments Shri S.C. Pushkarna, ld. JDR, submitted that the provisions of Section 11B of the Central Excise Act under which refund of Central Excise duty is granted clearly provides that the claimant of the refund has to establish that the amount of duty of excise was paid by him and the incidence of such duty has not been passed on by him to any other person; that merely bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x, is passed on to the customers. 5. The Supreme Court has observed in Mafatlal Industries case that presumption in Section 12B of the Central Excise Act that "until the contrary is proved, every person who has paid the duty on any goods shall be deemed to have passed on the full incidence of such duty to the buyer of such goods". The Supreme Court has held that "this presumption is consistent with the general pattern of commercial life. It indeed gives effect to the very essence of an indirect tax like the excise duty/customs duty…… Ordinarily speaking, no manufacturer would take the risk of not passing on the burden of duty". The duty liability as determined by the competent authority was known to the appellants during the relevant peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Mc Nally Bharat Engineering Co. Ltd. v. Commissioner of Central Excise, Ranchi - 2004 (168) E.L.T. 249 (T) = 2004 (93) ECC 62, wherein it has been held that as the buyers paid the appellants the contracted price, it can not be said that the extra duty has been recovered by them from their customer again. The said decision is not applicable as the facts are entirely different. In Mc Nally Bharat Engineering Co. Ltd. case the appellants had paid the duty on the entire contract value instead of treating the said contract value as cum duty price. In the light of these facts the Tribunal has held that the customers had only paid the contracted price and not anything in excess. In the present matter, as observed by us earlier, the appellants h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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