TaxTMI 
TaxTMI 
2008 (10) TMI 562
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....cts on record, respondents were engaged in the manufacture of articles of Paper and Paper Boards and pharmaceutical products. The dispute as regards availment of benefit of exemption under SSI notification arose for the period June, 1997 to January, 2000. Show cause notices were issued proposing denial of the said benefit on the ground that respondents were using the brand names of other persons and proposing confirmation of duty and imposition of penalty. The said show cause notice stand adjudicated against the appellant by Deputy Commissioner and appeal there-against did not succeed at the level of Commissioner (Appeals). The said order of Commissioner (Appeals) was impugned by the assessee before CEGAT. 3.During the pendency of procee....
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....AT order dt. 21-10-2002. Accordingly, they have furnished the same vide their letter D/Ws/DTA6/SOFTUCH3.APL, dt. 10-11-2003. Besides these, the appellants in their appeal memorandum contended that in response to AC's letter F.No. IV/Softouch/case/01-02 dated 9-8-2001, they had already informed him vide letter No. SFT/AHD/CE/2001-2002/08-03, dt. 9-8-2001 that the duty paid @ 16% is under protest which was borne by them and the same was not received from their customers and their prices remains the same inclusive of Central Excise duty being absorbed by them and paid under protest till final order against pending appeal; that the price shown in invoices was composite and no duty was shown separately therein; that the duty of Rs. 1,44,728/- pa....
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....he basis that the composite price including duty shown in the invoices was enough to raise an inference regarding passing on of the incidence of duty to the customers by the appellants. I find that the adjudicating authority has failed to appreciate the appellants letter F.No. SFT/AHD/CE/2001-2002/08-03 dt. 9-8-2001 which was sent to him by them lodging their protest against payment of full rate of duty on the products bearing brand name of others instead of availing exemption on the products in question and informing that our consumers cannot bear these additional cost in consideration of the stiff competition. Therefore, these additional costs will be borne by us and our price list remains the same inclusive of Central Excise Duty, being ....
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....assed on and recovered by the appellants from their customers. If this amount would have been passed on and recovered from the customers the C.Ex. duty (under protest) accounts would have been nullified and would not have remained as recoverable outstanding. I find from the copy of ledgers through invoices for the period in question is composite i.e. inclusive of excise which would lead to the presumption that the element of duty has been passed on to their customers, but the view taken by the Hon'ble Tribunal in case of CCE v. Metro Tyres Ltd. 1996 (82) E.L.T. 95 (Tribunal) which is subsequently upheld by the Apex Court 1997 (94) E.L.T. Page A.51 has clearly indicated that where assessee's invoices during the material period of refund show....