TaxTMI 
TaxTMI 
1995 (7) TMI 200
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....g. They, however, filed the price list corresponding to the latter contract price i.e Rs. 11.50 per kg. reducing therefrom, the element of excise duty @ 50% ad valorem (being less than Rs. 5.00 per kg.) thereby arriving at an assessable value i.e. ex-duty price of Rs. 6.9697 per kg. or Rs. 6969.70 per M.T. 2. Allegedly through oversight, the appellants paid the Central Excise duty @ Rs. 5.00 per kg. apart from additional excise duty and special excise duty causing thereby excess payment of C.E. duty for which refunds were claimed by the appellants. The Assistant Collector, however, rejected the claims on the ground that the appellants passed on the duty incidence, as paid to the department, to their customers. 3. On appeal the appellants herein did not succeed. It was upheld by the lower appellate authority that there can be no doubt about the passing of burden of duty of which refund is claimed by the appellants to the customers of the goods. Hence this appeal before the Tribunal. 4. Learned Advocate, Ch. Pratap K. Mishra for the appellants has urged that the appellants had not passed on the burden of which they claimed the refund i.e. 39,840.00 and Rs. 48,....
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....of the C.E.S.A., 1944. Based on the facts that no extra amount than the contracted `cum-duty' prices have been charged from the customers and that the price list indicates an ex-duty price calculating the rate of duty at 50% for basic excise duty instead of Rs. 5.00 per kg., submits the learned Advocate, his contention that burden of duty has not been passed by the appellants is obvious. Ld. Advocate further urges that the doctrine of unjust enrichment which has been incorporated in the proviso: (d) to Section 11B(2) is based on the facts that the act does not enrich the appellants at the expense of the customers. In other words even if they pass on the higher burden of duty to the customers yet there might exist the claim of refund from the Department. He submits that in the present case, the contracted price was Rs. 12.50 per kg. or Rs. 11.50 per kg. and it is this price which has been collected by the appellants from their customers. It cannot be said that in getting the refund in these circumstances, on account of higher payment of duty to the Department, the appellants are unjustly enriching themselves at the expense of the customers. In fact, submits the learned Advocate, if ....
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....the learned Advocate for the appellant firm that an invoice may not be the only evidence and the assessee can produce other collateral evidence regarding the passing of the burden of duty, in support of his contention that the appellants have not passed on the burden of duty of which they have claimed the refund, to the customers of the goods. But the question that arises in this case is whether such an evidence has been adduced by the appellants or not? The claim of the appellants on the basis of price list in respect of `cum-duty' price of Rs. 12.50 per kg. to Rs. 11.50 per kg. or on the basis of classification list, which approves either of the two rates of duty whichever is lower, cannot be considered to be acceptable in the absence of any proper evidence at all in support of the claim of whether the burden of duty has been passed or has not been passed on to the customers of the goods. The documents referred to are merely internal ones exchanged between the manufacturer and the Department. The customer is not at all aware of what classification list or price list has been filed by a manufacturer before the Department. As rightly pointed out by the learned J.D.R., the purchase ....
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....on who is liable to pay the duty i.e. the assessee has passed on the burden of the entire amount of duty or part of the amount of duty or no amount of duty, to the buyer of the goods or not. Even if a part of the amount of duty is passed on to the buyer such part will still be the excise duty paid on the said goods which are being sold to the customers. The provisions of Section 12A do not stipulates that the assessee has to indicate the whole of the amount of such duty which will form part of the price at which such goods are to be sold. It only speaks of the amount of such duty which will form part of the price of the goods. The price of the goods as stated above, may include the whole of the amount of duty or part of the duty or no duty at all, depending upon the marketability and competition among the sellers of excisable goods. While Section 12B raises a presumption that in the absence of any evidence to the contrary it will be presumed that an assessee has passed on the full incidence of duty of excise to the buyers of goods, therefore, unless the contrary is proved, it impliedly also means that it is the choice of the assessee not to pass on the entire burden of duty or not ....