The central legal point established in the judgment is that the focus of Section 11B of the Central Excise Act is to prevent unjust enrichment of the person who paid the duty and seeks a refund, rather than the ultimate consumer of the product.

R. JAYASIMHA BABU, J.

Assessee is a manufacturer of cutting tools. It's claim for refund of duty paid was on the ground that it had given credit notes to its dealers who were the purchasers of those goods. The fact that such discount was given as also the fact that discount given included the duty element is not disputed.

2.The claim for refund was made on 19-7-1988 and 15-6-1989. The claims were made within the period of limitation prescribed in Section 11B of the Central Excise Act.

3.Such claims were allowed by the Asstt. Collector and that order was affirmed by the Collector of Customs. On further appeal by the Revenue, the Tribunal disallowed the claim on the ground that the turnover discount could not be regarded as having any effect on assessable value and would not constitute an admissible deduction. The assessee having carried the matter on appeal to the Supreme Court, the Supreme Court by its Order dated 11-3-1997 held that the turnover discount is an admissible deduction. In the meanwhile, the Assistant Commissioner had directed refund of the amounts in view of the fact that the Tribunal had not stayed the order of the Commissioner who had confirmed the Order of the Assistant Collector, directing refund. The refund was granted subject to the condition that the amount should be re-deposited in the event of the Tribunal holding against the assessee. After the Tribunal made the Order against the assessee, the money was re-deposited by the assessee with the Government.

4.The Order directing refund was carried in appeal. Commissioner agreed with the Asstt. Commissioner. That Order of the Commissioner having been reversed by the Tribunal, this reference has come up before us at the instance of the assessee.

5.The fact that the assessee is a manufacturer; that it had sold the goods to its dealers, that the price at which goods were sold was a cum duty price; that it was known to the dealer that the turnover discount would be allowed even at the time of sale, that such discounting was in fact given after the sale based on the turnover achieved by the dealer; and that the discounts so given included the duty element, are undisputed.

6.The Tribunal declined to grant refund on the sole ground that it had not been established by the assessee that the burden of the duty paid by it initially had not been passed on to the consumer. There was no evidence whatsoever before the authority or before the Tribunal as to the price at which the goods were sold by the dealer who had bought the same from the manufacturer and from which it could be inferred that the ultimate buyer had been asked to bear the burden of the full extent of the duty initially paid by the manufacturer.

7.Section 11-B of the Central Excise Act which was introduced with effect from 17-11-1980, and was amended on 20-9-1991, sets out the conditions subject to which refund can be claimed. Application for refund made prior to 20-9-1991 are also required to be dealt with in accordance with amended provisions is required by proviso to 11B(1). Apart from requiring that claim be filed within the time allowed under the provisions of Act which is six months from the relevant date; that the application be in the prescribed form that it be accompanied by document or other evidence to establish that the amount of duty of excise in relation to which refund is claimed was collected from or paid by the claimant and incidence of such duty had not been passed on by the claimant to any other person; the claimant is also required to rebut the presumption contained in Section 12B of the Act which provides that it shall be presumed unless contrary is proved that the incidence duty had been passed on to the buyer.

8.It is significant that neither Section 11B nor Section 12B of the Act refers to the consumer or the ultimate user or the last purchaser. The condition which the claimant for refund must fulfil among other conditions is that he must not have passed on incidence of the duty t