Moheb Ali M., Member (T)

1. The appeal arose out of the order of the Commissioner (A) who in the impugned order held that the appellants before him were entitled for refund of Rs. 10,07,661/-.

2. The Revenues contention in the appeal are that the respondents did not file any appeal against the order of the Commissioner who fixed the A.C.P. and they had discharged their duty liability during the period 16/12/1998 to 28.2.2000 without demur in accordance with the Annual Capacity of Production fixed by the Commissioner. The Revenue contents that the respondent should have appealed against Annual Capacity of Production fixed by the Commissioner succeeded in such an appeal and then only would have become entitled for refund. It is also contended that the refund claim made on 22.10.2000 for payment made on 15/2/2000 is time barred as such payment was not done in accordance with the procedure prescribed under Rule 233B of Central Excise Rules. It is also the contention that under Section 12B it is the claimant of a refund that has to establish that he has not passed on the incidence of duty. The respondents have not discharged this burden.

3. Heard both sides.

4. The Revenues main contention is that the Commissioner (A) should not have allowed the refund when the Commissioners order fixing ACP was operational and was not set aside by a higher judicial forum. In fact this view was rightly taken by the Deputy Commissioner in his order rejecting the refund claim. The Ld. Commissioner (A) has not even dealt with this aspect. The Revenues contention that duty was not paid under protest as the procedure prescribed under Rule 233B was not followed by the respondent has merit. We accept the same.

5. Revenues appeal is allowed. The order of the Commissioner (A) is set aside.

(Pronounced in court)