1992 (2) TMI 83

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....pondent. The Department preferred an appeal before the Supreme Court against the said order of the Tribunal which was dismissed by the Supreme Court on 27th April, 1984. The Respondent made an application before the Assistant Collector of Central Excise for refund of the amount in terms of the order of the Tribunal, but that application was rejected by the Assistant Collector on 23-8-1989. The Respondent preferred an appeal before the Collector of Central Excise (Appeals) and the Collector allowed the said appeal setting aside the order of the adjudicating authority and directing him to reconsider the case of the appellant for refund on merits in the light of the clear order of the Tribunal. Since then no action was taken by the Appellants.....

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.... the goods were liable to excise duty under Tariff Item 26AA(ia) of the erstwhile First Schedule to the Act. He however, did not direct the refund on the following grounds : "I have gone through both the case reports submitted by the learned Advocate during the course of personal hearing. Those are not relevant in the present case. Both the cases were decided on the ground of unjust enrichment. The question here is to be decided who is the actual payer of C.E. duty and who will be the claimant. Central Excise duty is an indirect taxation and hence the duty is paid by the ultimate actual users of the goods. Manufacturers are the middlemen who collect duty from the buyers and pay to Government. So, C.E. duty is not paid from their own pock....

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....the goods to other customers on sale. From the above discussion I come to the conclusion that M/s. Indo Metal Industries is not the actual payer of C.E. duty. The actual payers of the duty are ultimate actual consumers of the goods. M/s. Poonam Trading Co. is also not entitled to receive back the C.E. duties as M/s. Poonam Trading Co, is purely a Trading concern but not the actual users of the goods". 5. The Respondent again moved before the Writ Court and the learned Judge after considering the facts and circumstances of this case allowed the writ petition and set aside the said order of the Assistant Collector of Central Excise dated 6-3-1991 and directed the refund of the said amount of Rs. 10,70,973.04. Hence, the present appeal. ....