As per the provision of sec 11B of the Central Excise Act that burden to prove that incidence of duty is not transferred to the customer is on the person claiming refund

Court :
HIGH COURT OF DELHI

Brief :
I have carefully examined the submissions.The refund claim in question comprises three distinct elements. The claim of Rs.2,81,558/- is in respect of remoulded chocolates. There is no disputed of the fact that this item has been held to be non-excisable by this Tribunal as per Final Order NO.653/99-D dated 2.7.99. Neither side has any case that he said final order of this Tribunal has not become final. That being so, there cannot be any difficulty in refund of any duty paid on remoulded chocolates. Inclusion of the value of the remoulded chocolates in the aggregate value of clearances of the assessee for the purpose of determining the extent of exemption under Notification No.1/93 CE led to a situation in which the appellants had to pay duty of excise on the other two products viz. chocolate confectionery (CSH 1083.00) and chocolate covered biscuits (CSH 1905,11) cleared in excess of the limit. In the final order ibid, this Tribunal has also held that the value of the non-excisable item viz. converted chocolates cannot be included in the aggregate value of clearances for determining the limit of exemption under Notification No.1/93-CE. As regards the excess duty paid on chocolate confectionery under the undisputed tariff entry CSH 1803.00, correctness of the quantum of duty to be refunded requires to be checked after excluding the assessable value of remoulded chocolates from the aggregate value of clearances. In regard to chocolate-covered biscuits, it has been conceded by ld. Consultant that the classification dispute is still alive before the adjudicating authority. This part of the refund claim, therefore, will be held to be premature. As and when the classification dispute over chocolate-covered biscuits is settled by adjudicating authority, the assessee will be at liberty to claim refund of any duty paid in excess and any such refund claim will be processed in accordance with law. Therefore, the refund claimed as on today in respect of chocolate-covered biscuits will stand rejected. Refund of any duty on remoulded chocolates held by this Tribunal to be non-excisable has to be allowed.

Citation :
MUNCH FOOD PRODUCTS LIMITED ..... Petitioner Through Mr. Rajendra Dutt, Advocate.versus COMMISSIONER AND ANR ..... Respondent Through Mr. Satish Kumar, sr. standing counsel.