1997 (8) TMI 203 - AT - Central Excise

Tribunal rejects Revenue's challenge on duty burden transfer, upholds decision in refund case.

The Tribunal accepted the grounds for condonation of delay in presenting a Reference Application due to peculiar circumstances. In the subsequent hearing, ... Reference to High Court - Refund - Reference application - Delay in filing Issues:Delay in presenting Reference Application to the Tribunal, sufficiency of documents under Section 12A of CEA, 1944 to discharge burden of proof under Section 12B of CEA, 1944 for refund under Section 11B of CEA, 1944.Analysis:The judgment pertains to a Miscellaneous Application seeking condonation of a 25-day delay in presenting a Reference Application to the Tribunal. The delay was attributed to the Commissioner's Office mistakenly pursuing an appeal before the Supreme Court based on the presumption that the issue involved concerned the rate of duty. However, upon the Board's rejection of this presumption, the Reference Application was filed. The Tribunal accepted the grounds for condonation due to the peculiar circumstances and proceeded to hear the Reference Application.In the Reference Application, the Revenue raised a question of law regarding whether documents furnished under Section 12A of CEA, 1944 are sufficient evidence for the assessee to discharge the burden under Section 12B of CEA, 1944 to prove that duty incidence was not passed on to the consumer for refund under Section 11B of CEA, 1944. The Revenue contended that the documents under Section 12A were insufficient evidence for discharging the burden.Conversely, the respondents argued that the question raised was a question of fact, not law, as it pertained to whether the documents under Section 12A were adequate to discharge the burden of proof. They cited a Supreme Court judgment and a Calcutta High Court judgment to support their position. The respondents also highlighted that there was no change in the selling price before and after a duty rate increase, indicating that the burden of duty had not been passed on to customers. Consequently, they asserted that the Tribunal's conclusion was correct.After considering arguments from both sides, the Tribunal agreed with the respondent's position that the issue was a question of fact regarding the sufficiency of evidence to prove that the burden of duty had not been transferred to customers. The Tribunal rejected the Reference Application based on the precedent set by the Apex Court and the Calcutta High Court, affirming that the Tribunal's decision was appropriate in the circumstances.