1999 (9) TMI 294

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....pellant worked out the assessable value on which duty is payable at the sale price of the goods in such a manner it claimed deduction to the account of these expenses beyond what was permissible. It was advised by the Asstt. Commissioner to amend these price lists which it did not, which resulted in higher assessable value than they had declared. 2. The appellant was issued a letter dated 10-3-1993 by the Jurisdictional Superintendent. In that letter, the Superintendent has told the appellant that appellant had recovered from its customer to which it sold the goods, duty on the deduction of the post manufacturing expenses which it had initially shown in the price list. Since this amount had not been paid to the Government the appell....

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....ls in the price list filed by the appellant was pro rata between it and the department, and was not, and could not have been known to any of the customers. The appellant has not collected from any person any amount as representing duty, which it had withheld from the department. Hence no amount is payable under Section 11D. It is next contended that the demand for duty is barred by limitation. The Superintendent's order was issued in March, 1993 for amounts collected in 1982-83. The provision of Section 11A of the Act would apply to any collection under Section 11D as has been held by the Madras High Court in its judgment in Gujrat (sic) Cable & Conductors v. C.C.E. - 1994 (72) E.L.T. 848. 5. The departmental representative largely ....

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.... tax ultimately falls not upon the person who pays it, but upon the person who ultimately buys the product or service. The manufacturer or service provider passes on the duty burden to the buyer of the goods or services. The amendment to the Act and the provision introduced in September 1991 reflect this position. Sub-section 2 of Section 11B provides that duty, the incidence of which has been passed on by the manufacturer, shall not be refunded to the manufacturer, shall be credited to the customer welfare fund. The section also authorizes buyers of the goods in cases where the incidence of duty has been passed on, to apply and receive refund of such duty. Chapter VII was introduced in order to give effect fully to the doctrine as incorpor....