TaxTMI 
TaxTMI 
2011 (8) TMI 948
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....perative part of the order is given below : "5. There is no dispute regarding the excess payment of the duty by the appellants. Their right to claim the refund of the excess paid 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) E.L.T. 247 (S.C.)]. 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 v. 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. ....
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....t data per tyre for the month of April, July and Oct; (h) Statement showing the comparative prices (assessable value) for the period from 1997 to 1998. 6. The reason given for not accepting the contention of the Appellant are given in para 5 of the impugned order. The same is reproduced below : "As the goods in question are captively consumed for manufacture of tyre the unjust enrichment clause 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 v. Solar Pesticides Pvt. Ltd. - 132 (E.L.T.) 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. J.K. 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 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" & &nbs....
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....ts i.e. 'Nylon Tyre Cord Fabric' on the tyre cost. On examination of the cost sheet submitted by the appellants, I find that the material cost of 'Nylon Tyre Cord fabric" as on 1st April, 1998, 1st July, 98 and 1st Oct. 98 is on increasing trend in many cases. I also find that the material cost of rubber on which the appellants claimed to have paid excess 'cess' is also on increasing trend in many cases in that period. In view of such circumstantial evidence, CA's certificate dated 28-1-04 and 29-1-04 does not help the appellants in proving that burden of duties was not passed on to the buyers of the finished goods. Accordingly, the present case is distinguishable from the relied upon decisions of the Hon'ble Tribunal in the case of Commissioner of Customs, New Delhi v. Maruti Udyog Ltd. - 2003 (155) E.L.T. 523 and Jaipur Syntex Ltd. v. CCE, Jaipur - 2002 (143) E.L.T. 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 impugne....
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....ut that the certificate of Chartered Accountant is silent on the fact whether the incidence of duty was passed on or not. The certificate only states that there are entries showing anticipated refund in the books of account of the Appellant. These certificates do not discharge the burden as specified in Section 11B of the Customs Act. 9. The Counsel for the Appellant gave further written submissions on 20-6-2011 pointing out the following decisions to support his case :- (i) CC v. Virundhunagar Textile Mills Ltd. - 2008 (230) E.L.T. 411 (Mad.). (ii) MRF v. CC, Kolkata - 2008 (225) E.L.T. 246 (Tri.- Kol.). (iii) J.K. Industries v. CC, Kolkata - 2007 (217) E.L.T. 111 (Tri.-Kol.). (iv) CCE v. Empee Sugar & Chemicals Ltd. - 2007 (211) E.L.T. 293 (Tri.-Bang.) = 2007 (7) S.T.R. 622 (Tri. - Bang.). (v) Zenith Ltd. v. CCE, Mumbai - 2005 (187) E.L.T. 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 incidenc....