2007 (1) TMI 31

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....ollowing questions of law :- "Whether the Hon'ble CEGAT has erred in allowing refund of Central Excise Duty even when the respondent No. 1 has failed to discharge the burden to prove that the incidence of duty had not been passed on to the buyer as required under sub-section (1) of Section 11B and Section 12B of the Central Excise Act, 1944?" Facts are not in dispute. The assessee-respondent No. 1 had been operating a hot steel re-rolling mill. It manufactures inter alia hot re-rolled products of non alloy steel which are chargeable to duty as per Section 3A of the Act read with Notification No. 31/97-C.E. (N.T.), dated 1-8-1997 which is assessed on the basis of annual production capacity (A.C.P.) of the unit. The assessee applied for A.C....

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....ust enrichment under the provisions of Section 12B of the Act and that the refund amount should be credited under Section 12C of the Act to Consumer Welfare Fund. 2.The assessee filed an appeal before the Commissioner (Appeals) against the Order-in-Original, who accepted the appeal by holding that the assessee had deposited Rs. 10,87,824/- on 25-3-1998 in respect of the period 1997-98 after the goods had been cleared and, therefore, it could not be established that the amount of duty had passed on to the buyer. According to the Commissioner (Appeals) the duty liability amounting to Rs. 10,87,824/- determined by the Commissioner deposited by the assessee on 25-3-1998 was paid by the assessee from its own pocket. Therefore, the refund was h....

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....Rs. 10,87,824/- for the period September, 1997 to February, 1998 was deposited on 25-3-98. We agree with the findings of the learned Commissioner that the amount of Rs. 10,87,824/- deposited on 25-3-98 on the demand of Assistant Commissioner was paid from their own pocket by the respondents herein. We do not find any legal or factual infirmity in this finding. In respect of the amount of Rs. 1,36,870/- deposited on 31-3-98 for the month of March 1998 the denial of refund to the respondents herein is not challenged as the goods were cleared during the month of deposit. In this view of the matter we do not see any reason to disagree with the findings of the learned Commissioner (Appeals)...." 3.We have heard learned counsel for the Revenue a....