TaxTMI 
TaxTMI 
2010 (8) TMI 300
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.... the Customs Tariff Act, 1975. They clear their goods at factory gate (duty duly paid) and transfer them to their depots at Chennai, Delhi, Kolkata, Mumbai, Hyderabad etc., on stock transfer basis (STB). They conduct sale through these depots. At the time of sale, they allow various discounts like cash discount, quantity surplus, freight rebate etc., to their customers. For the period from May 1996 to November 1999, APPL filed refund claims on the ground that the goods manufactured by them were sold at lower prices through their depots than the assessment value per metric ton at which price duty was paid at the time of clearing the goods on STB from the factory to the respective depots in different cities. There is no dispute that the price of the goods in the transfer invoice at the time of clearing the goods at the factory gate is higher than the invoice sale price at the time of sale at the depot. There is also no dispute that the duty was paid by APPL at the factory gate on transfer invoice on the assessment value and the value of the goods at depot includes 16% excise duty and 1.8% cess thereon. Be it also noted that APPL vide their letter dated 28-5-1996 informed the departme....
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....duced by APPL. He has also produced one such invoice before us to, show absence of the bifurcation of excise duty elements. According to him, it has to be presumed that the incidence of duty has been passed on to the buyer. Nextly, he contends that in view of the amendment of Section 4(4)(b)(iii) of the Act with effect from 28-9-1996 (subsequently again amended with effect from 1-7-2000) and the Central Valuation Rules, 2000 as well as Rule 7 of Central Excise (Determination of Price of Excisable Goods) Rules, 2000, even if depot sale is at a lesser price than the factory invoice, the transaction value shall be the invoice price when the goods are cleared for the purpose of stock transfer to depot. He placed strong reliance on Mafatlal Industries and Arhan Spinning Mills v CCE, Jaipur - 2003 (159) E.L.T. 597 (Tri.). 6. The counsel for APPL submits that the appellant cannot be permitted to take a new ground in an appeal under Section 35G, which was not raised before the Assistant Commissioner or Commissioner of CESTAT. According to him, the matter was remanded by CESTAT once. Even at that stage, no such ground was raised and therefore, based on Section 4(4)(b)(iii), it cannot....
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....WF) established under Section 12C of the Act, as APPL has not proved that they had not passed on the incidence of duty to the buyer. He draws support and sustenance for such argument under Section 12B of the Act. We are afraid we cannot accept the submission for reasons more than one. The Assistant Commissioner, Rajahmundry - as found by CESTAT - scrutinised all the invoices and recorded a finding of fact that APPL itself borne the burden of duty paid on clearance effected at factory at cash discounts, which are refundable and that relevant invoice numbers were noted in the depot invoices. Indeed, wherever APPL failed to produce evidence for exact correlation between depot invoice and factory invoice, claims were disallowed. The appellate authority in the first round of appellate consideration in various orders, dated 3-4-2000, 1-11-2000 and 9-11-2001 again considered the matter and allowed the refund claims. After remand by CESTAT, the appellate Commissioner again scrutinised invoices at random covering the disputed period, and recorded a finding of fact that APPL had not been paid any consideration over and above the amount invoiced at-the depot in all the cases. It is a finding ....
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....any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (f) the duty of excise and interest, if any, paid on such duty] borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify : Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty and interest, if any, paid on such duty has not been passed on by the persons concerned to any other person. Under clause (d) of the proviso to sub-section (2) of Section 11B of the Act, an assessee can claim payment of refundable amount to him only when he proves that the incidence of duty was not passed on to any other person. In the" absence of any such proof, presumption that the incidence of duty has been passed on to the buyer as adumbrated in Section 12B of the Act is attracted. In this case, the adjudicating authority, appellate authority and the learned Tribunal have consistently found that APPL has proved that the incidence of duty was not passed on to the buy....