2003 (9) TMI 84

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....given by the Inspector but it is not in dispute that the appellant has been paying the duty on the basis that the products were classifiable under Tariff Heading 2404.50 from 25th August, 1990. The payments were made under protest. 2.The classification list was approved on the basis that the appellant's products were classifiable under sub-heading 2404.50 in 1994, In the same year, on 18-2-94 the Central Excise and Gold (Control) Appellate Tribunal (CEGAT) decided in a similar case (Lachman Das Bihari Lal) that the products were classifiable under sub-heading 2404.60. On the basis of this decision of the Tribunal, the appellant filed an application for refund of the duty which had been paid by it under protest on the basis of the classif....

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....e appellant has raised two issues primarily before us. The first is that the Tribunal had misconstrued paragraph 108(iv) of the decision of this Court in Mafatlal Industries (supra) and that paragraph did not in any way preclude an application for refund being made in respect of duties paid under protest. The second submission is that in any event this Court in Sinkhai Synthetics & Chemicals (P) Ltd. v. Collector of Central Excise, Aurangabad reported in 2002 (9) SCC 416 has held that Sections 11A and 11B did not apply to duty paid under protest. 5.As far as the first submission is concerned, we are of the view that the Tribunal's appreciation of the relevant paragraph in Mafatlal Industries (supra) was correct. The "cause of action" of ....

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.... the Departmental authorities were right in holding that the appellant was not in fact entitled to claim for refund and whether the decision in 2002 (9) SCC 416 would be applicable to the appellant's case. 7.The appeal is accordingly allowed without any order as to costs. Civil Appeal No. 1458 of 2003 : 8.The issue raised in this appeal is as to whether the appellant was entitled to refund. The appellant's application for refund has been rejected by the Departmental authorities on the ground that no evidence had been adduced by the appellant that the burden of the higher rate of duty on the appellants' products for the material period has been passed on to their customers. The Tribunal has recorded that this finding of fact had not....