No question of passing burden of duty arise when it was paid under protest during pendency of adjudication proceedings

CA Bimal Jain

Facts:

Gujarat Insecticides Ltd. & Anr. (“the Respondent”) has deposited amount under protest during pendency of appeal before the Hon’ble Supreme Court as no stay was granted. The Hon’ble Supreme Court allowed appeal in favour of the Respondent. Thereafter, the Respondent filed refund claim of the amount so deposited under protest. The Ld. Sr. Central Government Standing Counsel alleged that the amount, which had been paid under protest was the amount of duty and, therefore, it was obligatory on the part of the Respondent to adduce evidence to the effect that the Respondent had not passed on the incidence of the duty to the buyers so as to be entitled to the refund.

Held:

The Hon’ble Supreme Court observed that there are two things which become apparent from the reading of the Order of the High Court that are:

• The duty for which the claim of refund is made, was paid under protest by the Respondent during the pendency of the adjudication proceedings;
• Further, the intermediary product was not marketable.

Hence, it was held that there was no question of passing on this element of duty to consumers/buyers, and accordingly, refund claim was allowed.

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