2007 (4) TMI 507

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....ch Commissioner (Appeals) allowed the party's appeal setting aside the order of original authority rejecting 4 refund claims. Appeal No. 1256/2004 is also by the Department and is against the order of Commissioner (Appeals) No. YPP/63/SRT/2004, dated 31-1-04 (arising out of Order-in-Original No. SRT-IV/Adj/30/03/R, dated 23-10-03). 2. The issue involved in these appeals is the same and therefore is being dealt with by a common order. 3. The relevant facts, in brief, are as follows :- (a)     The appellants (sic) are manufacturer of liquid nitrogen, ammonia and urea. They were procuring Nitrogen Gas Liquified (NGL) at concessional rate of duty for use in the manufacture of ammonia and urea by producing ....

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....d the duty amount to M/s. HPCL and hence not borne the burden of duty. (i)      Commissioner's findings are reproduced below: "Accordingly, the appellants being buyers are entitled to the refund claim. The judgment in the case of Swarup Fibre Industries Ltd. v. CCE, Meerut, reported in 2000 (120) E.L.T. 510 (T) is also important in this regard. In this case, the Tribunal has held that when no change takes place in the price structure of the product after increase in duty, it cannot be said that the incidence of duty has been passed to the customer. The ratio of the above judgment is applicable to the case of appellants as their finished product is sold under price control. The fact that whether the exemption o....

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....oner (Appeals)'s order dated 29-3-02 referred earlier. (b)     The original authority vide his order dated 23-10-03 sanctioned an amount of Rs. 3,59,39,000/- out of Rs. 4,82,33,686/- on the ground that the appellant by that time has paid to HPCL an amount of Rs. 3,59,39,000/- only and withheld the balance amount of Rs. 1,12,94,686/-. He has also held the fact that amount has not been paid by the appellant to M/s. HPCL at the time of filing the refund claim by the appellant, is of no relevance. 5.1 The learned Advocate appearing for the appellant submits that there is no dispute about the eligibility of refund in this case; when M/s. HPCL raised invoices for value and duty on the appellant, the liability to pay....

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....entioned persons is by way of exception. 6.1 We have carefully considered the rival submissions. Now, the following are not in dispute before us : (a)     The goods NGL were eligible for exemption under Notification No. 75/84, dated 1-3-84. (b)     The duty paid during the period 5-12-94 to 15-12-95 are liable to be refunded. (c)     The goods have been cleared from ONGC to M/s. HPCL and then by M/s. HPCL to the appellants. (d)    Once in the invoices, M/s. HPCL has indicated the duty amount, it is presumed that they have passed on the burden of duty on the buyer and therefore, are ineligible for refund. 6.2 Payment of duty by a manufactur....