2013 (4) TMI 75

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.... was engaged in manufacture of Non-Alcoholic Beverages Based (NABB) and has paid the Central Excise duty on clearance of NABB. In the year 1993 i.e. 20-10-1993 the officers of DGCEI visited the factory of Respondent. The Contention of the department was that advertisement expenses incurred by Soft Drinks Advertising and Marketing Services Pvt. Ltd. (hereinafter referred to as 'SAMS') are to be included in the assessable value. After completion of the investigation, the department issued show cause Notice dated 30-03-1994 for recovery of Rs. 2,86,90,828/- alleging non-inclusion of advertisement expense incurred by Advertising Agency i.e. SAMS in the assessable value of NABB i.e. concentrates sold to the bottlers under the contract wherein bo....

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....sit and therefore refund has to be granted. Accordingly, the original Adjudicating Authority vide Order - in- Original No. MP/1026-1028/200 dated 8-9-2000 sanctioned the refund claims on the basis of order passed by Hon'ble High Court, Gujarat. However at the same time, department preferred an Appeal No. 5577/2000 before Hon'ble Apex Court [2005 (188) E.L.T. (A81) (S.C)] against the order of Hon'ble High Court , Gujarat and simultaneously issued 3 show Cause Notices for recovery of erroneous refund along with the interest and also preferred appeal before Commissioner of Central Excise (Appeals) against Order - in - Original No. MP/1026-1028/200 dated 8-9-2000 sanctioning the refund claims. Commissioner of Central Excise (Appeals) vide its O....

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....nt includes the amount under the subject matter of refund. Commissioner (Appeals) should have sought details which he failed to do. It was also submitted that Commissioner should have considered the fact that any businessman who has paid duty would ensure that the amount is recovered from a buyer. Moreover the observation of the Commissioner that the buyers could have been questioned, summoned or matter is passing the burden of proving that duty has been passed on to the department which is not correct and legal. He also relies upon the decision of the Tribunal in the case of Toyota Kirloskar Moters Ltd. -2009 -TIOL-787-HC-KAR-CX.-2010 (256) ELT 216 (Kar.) to submit that chartered accountant's certificate is not enough evidence to show that....

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....nt it was shown that amount of Rs. 3,42,85,447/- which was shown as disputed liability for the year ending 1994-95 tallies with the amount shown in the balance sheet for the year ending 31-3-1995. Similarly after the refund was received by the respondent on 8-9-2000, the balance as on 31-3-2001 worked out by the chartered accountant in the statement attached to his report tallies with the balance sheet for the year ending 2001 where the disputed liability has been brought down from Rs. 3,71,00,000/- to Rs. 1,96,00,000/- From the annexure in the balance sheet when read together it becomes quite clear that the amounts paid by the respondent in 1993 and 1994 were included in the balance sheets for the corresponding years and subsequently witho....