2012 (5) TMI 247

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....al filed by the appellants against the order of the Adjudicating Authority has been dismissed. The Deputy Commissioner, Ludhiana by his order dated 14th May 2004 had dropped the proceedings which were sought to be initiated against the respondents under show cause notice dated 28th February 2003 and had ordered refund of Rs. 1,71,919/- by cheque and deemed credit not availed at the time of clearance and Rs. 44,922/- by cheque of the amount of AED excess paid to the respondent. 2. The challenge to the impugned order is on the ground that the respondent had not established that the duty element was not passed over to the customers. While assailing the impugned orders placing reliance in the decision of the Tribunal in the matter of Sa....

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....which reads as under : *       *       *       *       * Sub-section (2) of Section 11C provides for refund of duty that has been paid on the goods in respect of which Notification under Section 11C has been issued. Therefore, the refund claim under sub-sec. (2) should flow from the 11C Notification, and as a consequence thereof, which is, further, indicated by the requirement therein that the application should be made to the Assistant Collector within six months from the issue of the Notification. The provisions of Section 11C and sub-section (2), thereof cannot come into play in the case of any....

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....ence at the time of clearance of the goods on payment of duty and had filed the refund claims under Sec. 11B in 1986 and at much later stage, apparently, after the insertion and coming into force of sub-section (2) to Section 11C from 1-7-1988, and even before the issue of notification under Section 11C on 21-12-1988 in respect of their goods, the appellants have sought to show that the duty incidence passed on had been remedied by issue of credit notes to customers. It is not possible to interpret sub-sec. (2) of Sec. 11C to accommodate such situations and to say that even when duty has been passed on to the customers at the time of clearance the assessee can still claim refund under Section 11C(2) of Central Excises and Salt Act by issuin....