Cum-duty price refund barred where excise duty incidence was passed on to customers under the refund limitation rule.

Refund of excise duty claimed on invoice prices as cum-duty prices was barred where the duty burden had been passed on to customers. Although some invoices separately showed duty, that was not enough to defeat the claim based on omission in other invoices; however, accepting the refund contention meant the duty formed part of the price paid by buyers. As the incidence of duty had been shifted to customers, refund was not maintainable under the statutory bar in Section 11B(2).

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Issues: Whether the appellant was entitled to refund of excise duty paid on invoice prices on the footing that the prices were cum-duty prices and the duty element had to be deducted in arriving at the assessable value, or whether refund was barred because the incidence of duty had been passed on to customers.

Analysis: The appellant cleared goods under Rule 173C(11) on invoice prices and sought refund on the premise that the duty element should be excluded from the assessable value. The finding that some invoices separately showed duty was held to be insufficient to reject the claim on the theory that the duty had been omitted from other invoices. Even so, accepting the claim necessarily meant that the duty formed part of the invoice price paid by buyers. Once the burden of duty had been shifted to customers, refund could not be granted in view of the bar under Section 11B(2).

Conclusion: The refund claim was not maintainable because the incidence of duty had been passed on, and the appeal failed.

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