2007 (7) TMI 492

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.... to the clearance of the dutiable goods from his factory. Respondents were directed by the officers to pay the amount of the duty on the transport charges which were collected by the respondent from their customers by charging on the invoices, respondent paid the amount and contested the amount of such duty. The issue was held in the favour of the respondent. Subsequent to such decision in favour of the respondent, the refund claim was filed, the said refund claim was rejected by the adjudicating authority on the ground that it is hit by bar of unjust enrichment. Against the said adjudication order the respondent filed an appeal before the ld. Commissioner (Appeals). The ld. Commissioner (Appeals) accepted the plea of the respondent by comi....

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.... is paid long after the clearance of their excisable goods and also they had already clarified that they had not issued any debit note for recovery of the said duty, there is no question of recovery of the same from the customers by charging in the invoices. It is a fact that the appellants debited Rs. 74,412/- in Cenvat Account vide Entry No. 37 dated 16-7-2004 and in PLA Entry No. 03/22-7-2004 for Rs. 11,162/- and interest of Rs. 10,607/- vide PLA Entry No.03 dated 22-7-2004. In short, the appellants paid totally Rs. 96,181/- after the visit of Preventive staff to the unit on 10-2-2004. It is observed that the appellants had paid the differential Central Excise duty on the value of transport charges as alleged by the Preventive staff afte....

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....". It can be seen from the above-reproduced findings of the ld. Commissioner (Appeals) that the ld. Commissioner (Appeals) has correctly applied the law, which is settled by the Tribunal in a series of judgments. It is also to be mentioned here that the Hon'ble High Court of Punjab & Haryana in the case of Commissioner of Central Excise, Chandigarh-I v. Modi Oil & General Mills as reported at [2007 (210) E.L.T. 342 ( P & H)] has held as under :- "We have heard learned Counsel for the Revenue and find that the question of law would arise warranting acceptance of prayer of the Revenue to make a reference to this Court under Section 35G of the Act. The question whether the incidence of duty has been passed on to the buyer is necessarily ....