1997 (7) TMI 172

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....n for issue of Writ of mandamus directing the respondents to refund the amount of Rs. 19,024.04 to the petitioner covered by an Order No. 65/88 (B), dated 30-6-1988 of the Second Respondent together with interest at 18% per annum. 2.The contention of the petitioner is that in exercise of the powers under Rule 18(1), of the Central Excises and Salt Act. The Central Government issued Notification....

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....m of Rs. 19,029.04 as Excise Duty for Tread Rubber. The present petition is for the refund of the same. 3.The petitioner filed a refund claim before the first respondent claiming a refund for the sum of Rs. 19,029.04 and the first respondent rejected the claim by his letter dated 8-2-1987 on the ground that the claim is time barred under the provisions of Section 11(B) of Central Excises and Sa....

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....h elaborately. All claims for refund except where levy is held to be unconstitutional, to be preferred and adjudicated upon under Section 11B of the Central Excise Act, 1944 or under Section 27 of the Customs Act, 1962 and subject to claimant establishing that burden of duty has not been passed on to third party. Section 11B : Claim for refund of Duty : Any person claiming refund of duty of ....

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....idence of such duty to any other person. 6.Hence, it is crystal clear that the manufacturer is entitled to refund the Excise Duty only when he has not passed on the incidents of such duty to any other person. In this instant case, the petitioner has not claimed so, as such the manufacturer had no vested legal right to refund when he passed on the incident of duty to others. To quote from the ab....