TaxTMI 
TaxTMI 
2011 (6) TMI 470
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....aid duty had been accepted by the authorities below with a rider that they had passed on the incidence of duty to the consumers and as such are not entitled to get back, in view of the apex Court judgment in the case of Mafatlal Industries [1997 (89) ELT 247 (SC)]. The contention of the counsel that for proving of having not passed on the incidence of duty, the evidence placed before the Commissioner (Appeals) by the appellants could not be ignored, rather he should have examined the same even if it was produced for the first time, in the light of the law laid down by the Tribunal in case of CCE Vs Maruti Udyog Ltd (supra) and Jaipur Syntex Ltd (supra) in our view, deserves to be accepted. The perusal of the impugned order shows that the learned Commissioner (Appeals) has referred to only to the C.A. Certificate produced before him by the appellants. He has not made reference to the vouchers or copies of the balance sheets produced before him. He has refused even to take cognizance of that C.A. certificate also. But this, in our view, in the interest of justice, should not have been done. He should have gone into the authenticity, correctness and the evidentiary value of those docu....
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....se is applicable to their refund claim of excess custom duty paid on inputs in view of the Hon'ble Supreme Court's judgment in the case of Union of India Vs Solar Pesticides Pvt Ltd 132 (ELT) 401. In this context, I now examine the contention of the appellants as under: (a) Chartered Accountant's certificate dated 28.1.04 and 29.1.04 "It is to certify that M/s JK Industries Ltd Kankroli has deposited an excess amount of Rs. 27,50,306/- over prevailing rate of actual customs duty and special addl. Custom duty during June 1998. This mount has been included in Advance Account of the company as on 31.3.99 till date and has not been adjusted in P&L account" 'It is to certify that M/s JK Industries Ltd Kankroli has deposited an excess amount of Rs. 26,000/- over prevailing rate of actual custom duty and special addl custom duty during June, 1998. This amount has been included in advance account of the company as on 31.3.99, till date and has not been adjusted in P&L account.' I find that in these two certificates, the CA has not certified that the cost of inputs in question has been taken excluding the duty element (i.e. on which refund claimed) in computing the cost of final product....
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....ble Tribunal in the case of Commissioner of Customs, New Delhi Vs.Maruti Udyog Ltd 2003 (155) ELT 523 and Jaipur Syntex Ltd Vs CCE Jaipur 2002 (143) ELT 605; and therefore, the appellants cannot take shelter of these two decisions." 7. During the hearing the Counsel for the Appellant submits that they had produced as much evidence as possible and they are at their wit#s end as to what other evidence could be produced, to prove that the incidence of the impugned duty was not passed as to the consumer. They submit that they are willing to produce any other evidence as may be specified by the Tribunal. In the Appeal Memo the following submissions are seen: "2. The Refund Claim relates to duties of Customs paid in excess of that payable on the goods imported viz. synthetic rubber and Nylon Tyre Cord Fabric during the period April 1998 to June 1998. The appellants discharged Rs.26,106/- as Cess on imported synthetic rubber and Rs.27,50,306/- as Special Customs duty and Special Additional Customs duty on imported nylon tyre cord fabrics which were not payable. The Board vide CBEC Circular No. 65/97-Cus. dated 27.11.97 clarified that CESS on synthetic rubber is not payable. The levy of ....
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.... (iii) J.K. Industries Vs. CC, Kolkata - 2007 (217) ELT 111 (Tri-Kol). (iv) CCE Vs. Empee Sugar & Chemical Ltd. - 2007 (211) ELT 292 (Tri-Bang). (v) Zenith Ltd. Vs. CCE, Mumbai - 2005 (187) ELT 23 (Tri-Mum). The point the ld. Counsel wants to emphasize is that a certificate from a Chartered Accountant and entries in financial accounts showing anticipated refund are good enough to discharge the burden that incidence of tax has not been passed on to consumers. 10. Considered arguments on both sides and also the records. 11. Data Submitted as annexure -21 of the Appeal Memo gives information as under:- COMPARATIVE CHART FOR VALUATION OF TYRES/TUBES AND FLAPS S.No Size/Description CETH COMPARATIVE PRICE (Ass. Value) 1.11.1997 1.4.98 8.6.98 24.11.98 TYRES 1. 1000.20/16 PR/JETTRACK 4011.9 6067.08 6006.18 5978.72 5978.72 2. 1000.20/16 PR/JET RIB 4011.9 5519.65 5501.32 5476.16 5476.16 3. 1000.20/16 PR/JETTRACK-39 4011.9 6889.31 6530.73 6500.87 6500.87 4. 145/70 SR 12 ULTIMA 4011.9 861.96 871.98 867.99 867.99 5. 825.20/14 PR/JET TRACK 4011.9 3938.95 3926.16 ....