TaxTMI 
TaxTMI 
TaxTMI 
2014 (1) TMI 1383
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....anufacture of passenger utility vehicles and parts thereof, which, admittedly are excisable under Chapter 87 of the Central Excise Tariff Act, 1985 (for short 'the Act of 1985'). At the relevant time, the assessee used to purchase tyres and tubes from M/s. South Asia Tyres Limited, at Aurangabad in the State of Maharashtra and avail modvat credit of the duty paid on these goods. Prior to 1-3-2000, entire duty i.e. the basic duty specified under the first schedule as well as special duty specified under the second schedule of the Act of 1985, paid on such tyres and tubes, was available as modvat credit to the respondent. Consequent to the amendment of Central Excise Rules, with effect from 1-3-2000, credit of special duty paid on the inputs under the second schedule of the Act of 1985 was not admissible. With effect from 1-3-2000, the rate of duty payable on tyres and tubes was 16% basic duty specified under the First Schedule and 16% special duty specified under the Second Schedule of the Act of 1985. As per notification No.6/2000-CE, the duty payable under Second Schedule of the Act of 1985 on tyres and tubes was exempted, if used within the factory of production and the procedure....
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....under the said section? (b) Whether it is permissible for the CESTAT to totally ignore the effect of Section 12B of the Central Excise Act, 1944?" 8. Both the questions were answered against the assessee and in favour of the revenue vide judgment and order dated 7.12.2009 reported in CCE v. Toyota Kirloskar Motors Ltd. 2010 (256) ELT 216 (Kar). This Court considered the material that was placed before the Tribunal and also the Cost Analysis Certificate dated 17.6.2002 which was produced for the first time in the appeal and remanded the matter with the following observations made in paragraphs 14 and 15 of the order: "14. In the instant case, we notice from the records that a certificate dated 10.5.2001 issued by the Chartered Accountant M/s. Agiwal P. Associates has been produced before the adjudicating authority and the certificate now produced by the respondent's counsel before this Court is that of Sri.Om Prakash, Chartered Accountants, dated 17.6.2002 i.e., subsequent to the order of adjudicating authority. Hence, we find that that certificate which has now been pressed in to service was admittedly not available before the ad....
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....ssed on the duty to its customers. Coupled with these two factors, it would be a corroborative evidence for the respondent by producing the certificate of the Chartered Accountant or such other technical certificate as may be necessary in a given set of circumstances to establish the fact that duty is borne by the applicant itself. In the absence of these two ingredients, it cannot be universally held that certificate itself is sufficient to establish that incidence of duty has not been passed on to the buyers. Thus, we find that Tribunal was in error in coming to a conclusion that department ought to have given adequate reasons for rejecting the said certificate and in the absence thereof, it is to be accepted. Hence, we find the said reasoning adopted by the Tribunal is erroneous and required to be set aside. Accordingly, we do so." (Emphasis supplied) It is against this backdrop, this Court with further observations in paragraphs 14 and 15, remanded the matter to the Adjudicating Authority. 10. This judgment and order dated 7.12.2009 was carried to the Supreme Court in Civil Appeal No.2911/2010. The Supreme Court while co....
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....rs for considering their refund claim. 11. While considering the question of law raised in the appeal, we also would like to consider whether the Tribunal was right in holding against the assessee on the basis of materials placed on record by the assessee after remand of the matter by this Court vide order dated 7.12.2009 rendered in CEA 28 of 2005 and confirmed by the Supreme Court vide order 29.3.2011 in Civil Appeal No.2911 of 2010, and whether the Tribunal has taken into consideration the entire materials on record for answering the question in favour of the revenue. 12. The assessee-company was established in 1997 and is engaged in manufacture of Multi Utility Vehicles. The assessee commenced their production in November 1999. At the relevant time they had their production in four versions namely Fleet, Family saloon (FS), grand Saloon'(GS) and Grand saloon Touring (GST). Though they claim refund of the excise duty in respect of all four models, they had produced certificate of the Cost Accountant only in respect of 'Family Saloon' model 'showing cost computation based on average material costs. This Court in the earlier round had an occasion to consider the said certificate....
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....ort to the appellant whose contention is that as the selling price of the motor vehicles remained the same prior to 1.3.2000 and after that date as certified by their Cost Accountant, it should be held that the incidence of duty was not passed on to the buyers of the motor vehicles. Each of the other three certificates has certified that the selling price remained the same and hence the elements which constituted the selling price also remained the same from 1.3.2000 vis-à-vis the pre-1.3.2000 price. All the certificates also say that they were issued on the basis of verification of records maintained by the assessee. But, in answer to queries from the Bench, the learned counsel for the appellant has admitted that no records are available for verification Therefore any independent scrutiny of the primary records necessary for the assessee to discharge the burden of proof against the bar of unjust enrichment is not possible. In terms of the Supreme Court's remand order, we have stepped into the shoes of adjudicating authority and hence can call upon the assessee to adduce primary evidence to support their claim that the incidence of duty paid on tyres and tubes had not been p....
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.... provision, provided the incidence of duty was passed on to the customers, this Section need not detain us further. 15. Section 12-A provides for price of goods to indicate the amount of duty paid thereon. It states that every person who is liable to pay duty to excise on any goods shall, at the time of clearance of the goods, prominently indicate in all the documents relating to assessment, sales invoice, and other like documents, the amount of such duty which will form part of the price by which such goods are to be sold. 16. Under Section 12B every person who has paid the duty on excise on any goods under the Act shall, unless the contrary is proved by him, be deemed to have passed the full incidence of such duty to the buyer of such goods. 17. From bare perusal of these provisions, it is clear that in a case, like the present one, it is necessary for the assessee who is seeking refund as contemplated by Section 11B of the Act to satisfy two conditions/circumstances namely that the applicant should be entitled for refund, and secondly, that the incidence of duty had not been passed on to the customers. While examining whether these conditions are satisfied it is necessary to ....