Buyer's refund claim under amended Section 11B upheld where excise duty was borne and exemption conditions were satisfied.

After the 1991 amendment to Section 11B, a buyer who has borne excise duty and has not passed on the incidence may maintain a refund claim, because the provision contemplates refund claims by persons other than the manufacturer, including reference to the buyer's date of purchase. Refund under Notification No. 78/90 was also held not to be barred merely because the manufacturer did not claim the exemption at clearance or obtain the prescribed certificate earlier, so long as the statutory conditions were otherwise satisfied. On that basis, the buyer's refund claim was maintainable and the departmental appeal failed by majority.

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Issues: (i) Whether, after the 1991 amendment to Section 11B, a buyer of excisable goods who has borne the duty can maintain a refund claim. (ii) Whether refund of duty paid on the goods was barred because the manufacturer had not claimed the exemption under Notification No. 78/90 at the time of clearance and the prescribed certificate was obtained later.

Issue (i): Whether, after the 1991 amendment to Section 11B, a buyer of excisable goods who has borne the duty can maintain a refund claim.

Analysis: The amended refund provision expressly recognises a person other than the manufacturer, including a buyer, where the duty has been borne by that person and has not been passed on. The relevant-date clause also contemplates the date of purchase for a claimant other than the manufacturer. The right of refund is therefore not confined to the manufacturer alone, though it can arise only where the statutory conditions are satisfied and the incidence of duty has not been transferred onward.

Conclusion: The buyer was competent to claim refund under Section 11B, subject to fulfilment of the statutory conditions.

Issue (ii): Whether refund of duty paid on the goods was barred because the manufacturer had not claimed the exemption under Notification No. 78/90 at the time of clearance and the prescribed certificate was obtained later.

Analysis: The notification granted concessional duty to specified pollution-control equipment on production of certification by the designated authority, but it did not require that only the manufacturer could seek the benefit or that a classification list alone would be ative. The majority held that the notification and Section 11B contained no prohibition against the buyer asserting the refund claim where the duty burden had fallen on the buyer and the exemption conditions were satisfied. The dissenting view treated the claim as impermissible because the manufacturer had not claimed the exemption at clearance and the certificate was not in hand at that stage.

Conclusion: Refund was not barred on this ground, and the buyer's claim was maintainable.

Final Conclusion: By majority, the departmental appeal failed and the refund granted to the buyer was sustained.

Ratio Decidendi: After the 1991 amendment to Section 11B, a buyer who has borne the excise duty and has not passed on its incidence may claim refund, and exemption-based refund cannot be denied merely because the manufacturer did not initially claim the notification benefit at clearance when the statutory conditions are otherwise satisfied.

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