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Documents citing National Winder vs Commissioner Of C. Ex., Allahabad on 11 March, 2003

District Food & Supplies Controller vs Cce, Chandigarh on 28 May, 2009

I have carefully examined the case records including the Appellants submissions made in writing and at the time of personal hearing and observe that in the instant case goods were purchased in 1986 and the refund claim has been filed on 13.8.96 by the Appellants. Even if the basis of the refund claim is treated to be Order-in-Original No. 153/CE/95 dated 4.8.95, then the claim should have been filed by 03.02.95. Contention of the Appellants that no limitation is attracted because it was a payment under Section 35F does not hold good as duty was recovered from the manufacturer  Supplier against confirmed demand pending recovery against them and not from the Appellants. Further the case law cited as National Binder Vs CCX, Allahabad 2003 (154) ELT 350 (SC) deals with the refund claim where duty was paid under protest, whereas in the instant case duty has been paid by the manufacturer (Seller) and not by the purchaser (Appellants). Since the duty has been paid by the manufacturer and as such it was for manufacturer (SAPL) to claim refund and not the Appellants.
Custom, Excise & Service Tax Tribunal Cites 3 - Cited by 0 - Full Document

A.K. Enterprise vs Commr. Of Customs (Port) on 3 October, 2005

4. In the present case, I find that the appellants filed appeal against the order of assessment. Therefore, the question of time bar does not arise. When the appellant has submitted an appeal, then it has to be treated that the payment has been made under protest and the question of limitation does not arise. This view has been expressed by the Hon'ble Supreme Court in the case of National Winder v. Commissioner of C.Ex., Allahabad and Commr. of Central Excise, Mumbai II v. Allied Photographics India Ltd. . Therefore, the question of limitation does not arise. In the present case, the appellants imported the goods and sold to the buyers in such conditions. In terms of Section 28(C) of the Customs Act, 1962, the appellant was required to indicate in all sale invoices, the amount of duty which would form part of the sale price. In the present case, the appellants did not submit any sale invoice. Neither the appellants had submitted any proof regarding incident of duty. Under Section 28(D) of the Act, the presumption is that every person who paid duty on the goods would be deemed to have passed on full incidence of duty to the buyers of such case. Unless he proved otherwise. It was incumbent upon the appellants to prove any documentary ... evidence to rebut the presumption. The appellants failed to produce such evidence. Mere submission of Chartered Accountant's Certificate is not sufficient. Therefore, the refund claim is hit by bar of unjust enrichment and has been rightly rejected by the Commissioner (Appeals). In view of the above discussions, I do not find any force in the appeal. Consequently, I dismiss the appeal.
Customs, Excise and Gold Tribunal - Calcutta Cites 5 - Cited by 0 - Full Document

Commissioner Of Central Excise vs Shri Jagdamba Polymers Ltd. on 4 November, 2004

3. On the other hand, Shri Hardik Modh, ld. Advocate, submitted that it has been held by the Supreme Court in the case of National Winders v. C.C.C., [2003 (154) ELT 350 (SC] that if the duty has been paid under protest by the manufacturer, the benefit of the same will be available to the customers also and the time limit specified under Section 11B of the Act will not be applicable.
Customs, Excise and Gold Tribunal - Mumbai Cites 7 - Cited by 0 - Full Document
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