TaxTMI 
TaxTMI 
2010 (10) TMI 445
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....ust enrichment to the matter. 2. The appellants are manufacturers of Liquefied Petroleum Gas classifiable under sub-heading 2711.19 of the First Schedule to the Central Excise Tariff Act, 1985. They were selling their final product LPG exclusively to oil marketing PSU i.e. IOCL, BPCL and HPCL and were paying duty of the price of LPG. The appellants filed a refund claim for Rs. 32,65,057/-. Consequently a show cause notice dated 18th December 2003 came to be issued proposing to reject the claim on the ground that the incidence of duty was passed on by them to their buyers. After hearing the parties, the Adjudicating Authority sanctioned the refund but ordered the same to be credited to the consumer welfare fund. The appeal against the same was also rejected. 3. While assailing the impugned order, placing reliance in the decisions in the matter of R.C.C. (Sales) Pvt. Ltd. v. CCE, Hyderabad-IV reported in 2008 (223) E.L.T. 53 (Tri. -Bang.) = 2007 (8) S.T.R. 55 (Tribunal), Polyglass Acrylic Mfg. Co. (P) Ltd. v. CCE, New Delhi reported in 2009 (235) E.L.T. 374 (Tri.-Del.), CCE, Coimbatore v. Flow Tech Power reported in 2006 (202) E.L.T. 404 (Mad.), Paper Products Ltd. v.....
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....nt of failure on the part of the appellants to prove the facts of non-transfer of the duty incident upon the buyers. She further submitted that the appellants at a time of verification of their claim was repeatedly asked to submit the details of realisation of the duty against supply of LPG to the buyers during the relevant period for the purpose of comparison thereof invoice-wise, however, the appellants failed to produce any such details. The certificates of the buyers were produced only after the disposal of the matter by the Adjudicating Authority. She further drew our attention to Section 12B of the Central Excise Act, 1944 while contending that heavy burden lies upon the assessee to establish the claim regarding non-transfer of duty incident upon the buyers. The appellants, according to the department, having failed to establish the same, no fault can be found with the impugned order. 5. It cannot be disputed that in case of refund claim, heavy burden lies upon the assessee to prove the fact that the duty incident has not been passed over to the buyers. In that regard the assessee is required to produce cogent evidence establishing the fact of either non-transfer of t....
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....the Chartered Accountant the same reads thus :- "We have verified the relevant documents, records and books of accounts of M/s. GAIL (India) Ltd., LPG Recovery Plant, Vijaipur, Distt. Guna and certify that they have short received excise duty of Rs. 4,11,40,056.00 from M/s. IOCL, M/s. BPCL & M/s. HPCL towards sale of LPG for the period from Jan'99 to March'99 & Sept'99 to 28th Oct'99 as per statement annexed. After adjustment of short payment of excise duty for the period from April'99 to August'99, an amount of Rs. 32,65,057.00 is still recoverable and is outstanding in their books of accounts and has been included in separate account code 280320 - Claim Recoverable Others." 9. Plain reading of the said certificate discloses that it undoubtedly states that the Chartered Accountant had verified the relevant documents, records and books of accounts of the appellants. The certificate further states that based on such verification, the Chartered Accountant has certified that the appellants had short received excise duty of the amount disclosed in the certificate from IOCL, BPCL and HPCL during the period from January 1999 to March 1999 and September 1999 to 28th October 199....
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....the same can be stated to be relevant in any manner. First of all, whether the duty element has been collected or not is a question of fact. Whenever a question of fact is to be proved, the same has to be established by following the process known to law. In order to issue a certificate there has necessarily to be an authority or power given in that regard under some statutory provision to a private individual or firm. Any certificate issued by private individual or a group cannot have legal sanctity, and certainly not in relation to any fact in dispute. When the authority wants to establish any such fact, it has to establish it either by examining the person having direct knowledge of the fact or by filing a affidavit of such person. When a fact in relation to collection or non-collection of duty is to be established on the basis of accounts maintained by any company, minimum that is expected in relation to the proof in that regard is that either the Chartered Accountant or the company secretary or the accountant dealing with the accounts of the company, on the basis of the accounts maintained by the company, should file an affidavit making necessary disclosure. It is only then, s....
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....certificate confirmed that the duty paid on the goods was absorbed by the assessee and had not been passed on to the customer. As already observed above, the certificate of Chartered Accountant in the appellant's case does not certify this aspect. 16. In Paper Products Ltd. case, the Tribunal has observed that "the Commissioner (Appeals) has not disputed the Chartered Accountant's certificate but simple says that some more evidence was needed without specifying the nature of evidence which he would like to have. He has not stated as to why the books of account, balance sheet and Chartered Accountant's certificate cannot be relied upon as already observed above, we have elaborately discussed and given reasons as to why the Chartered Accountant's certificate in the matter in hand cannot be relied upon". Admittedly the necessary account extracts alongwith the comparison with the invoices were made available to the Superintendent for necessary verification. Being so, this decision also is of no help to the appellants. 17. In Laxmi Steel Industries case, the same was decided purely on the basis of the decision in R.C.C. (Sales) Pvt. Ltd. case. As already stated above, in....
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.... the full incidence of such duty to the buyers of such goods, the principle of unjust enrichment will not apply as the Supreme Court in the case of Mafatlal Industries v. U.O.I. - 1997 (89) E.L.T. 247 (S.C.) has held that such presumption is a rebuttable presumption of law and not a conclusive presumption. In view of these facts that the appellants therein was held to have rebutted the presumption of passing of the incidence of the duty initially shown in the invoice to their customer. Accordingly, refund of the excise duty paid by them i.e. Rs. 4,75,744/- will be admissible to them. The appeal is thus allowed." Plain reading of the above contents of the order would disclose that the decision was arrived at on the basis of non-controverted facts. 21. In Oswal Cotton Spinning Mills case, it was observed thus :- "3. We have carefully considered the rival submissions and perused the invoices, debit notes and relevant extracts from the ledgers. We find that in the invoices raised by the respondents the excise duty component has been separately shown, the customers have raised debit notes on account of excise duty, indicating that the amount shown in the debit note was not....