TaxTMI 
TaxTMI 
2014 (10) TMI 678
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....ors are related, they discharged excise duty at the sale price of Phyto Marketing Pvt. Ltd. Accordingly, the respondent in their excise invoices have taken such value (assessable value) as the sale price of the said Phyto Marketing Pvt. Ltd. and computed the excise duty. In the commercial invoice of even date (which contains reference of the excise invoices). The goods have been valued at the actual sale price of transfer price under Rule 6 of the Valuation Rules, 2000 and have accordingly shown such total value in the commercial invoices and their upon have added Sales Tax. However, it is further case of the Revenue that although the respondent have valued the excise duty paid on higher assessable value, but in fact they have collected the lower amount of excise duty as per the value taken in the commercial invoices and have received payment as per the commercial invoices. The period during which this practice was continued is 16.12.2001 to 30.11.2002. Subsequently, the respondent on its understanding and so advised, that it has wrongly determined the assessable value at a higher amount and have paid excess excise duty, filed refund claim with the Revenue. The said refund claim wa....
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....ied on the sample copy of the commercial invoices/excise invoices. Further, the Commissioner (Appeals) found that rulings relied upon by the respondent are relevant wherein it was held that if the sale price before and after payment of duty has remained the same, then the incidence of duty could not have been passed on to the buyers. The learned Commissioner (Appeals) found that the sufficient evidence was on record which shows that the differential duty for which refund has been claimed has not been passed on to the buyer(s) of the respondent. Accordingly, it was held that the bar of unjust enrichment is not applicable in this case and appeal of the respondent assessee was allowed. 4. Being aggrieved, the Revenue has filed the present appeal before this Tribunal on the ground that Section12B of Central Excise Act provides that every person who has paid the duty of excise on any goods under this Act, unless the contrary is proved by him, he deemed to have passed on the full incidence of such duty to the buyers of such goods. Thus, it is a presumption against the manufacture i.e. respondent which needs to be discharged. Further, reliance is placed by learned AR on the provisions of....
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....-2004 (166) ELT 3 (SC), wherein it was held that claim is hit by bar of unjust enrichment and the uniformity of price does not lead to the inevitable conclusion that the incidence of duty has not been passed on to the buyers and accordingly, the rejection of refund was upheld. 4.1 The learned AR further relies on the ruling of the Tribunal in the case of Sona Udyog Ltd. Vs. Commissioner of Central Excise, Indore-II -2005 (183) ELT 396 (Tri-Del), wherein also following the ruling of the Apex Court in the case of Allied Photographics Ltd. (supra) it was held that where there is no change in price structure it does not lead to the inevitable conclusion that the incidence of duty has not been passed on to the buyers. Reference is also drawn to the ruling of the Apex Court in the case of Commissioner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. -2004 (166) ELT 3 (SC) wherein the fact that the manufacturer, New India Industries Ltd. (NIIL), of photographic printing paper, which have become chargeable to excise duty w.e.f. 1.3.1974. NIIL entered into distribution agreement with a firm Agfa Gevaert (India) Ltd. (AGIL) for supply of goods. The refund claim was filed sub....
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....ble Apex Court in the case of Commissioner of Central Excise, Calcutta Vs. Panihati Rubber Ltd. -2006 (202) ELT 41 (SC), wherein the facts were the Panihati Rubber Ltd. supplied goods to Indian Railway and had paid excise duty. Such goods came to be classified under the sub-heading 4009.92, which was disputed by the Revenue and was finally decided in favour of the Panihati Rubber Ltd. and accordingly had applied for refund of the duty paid earlier. The said refund claim was rejected on the ground of unjust enrichment. Allowing the appeal of Panihati Rubber Ltd., the Tribunal had relied upon the certificate provided by the Indian Railway, which categorically stated that according to the contract, the prices were inclusive of excise duty. Further, subsequent certificate indicated that no amount of excise duty was included when pricing was working out. The Hon'ble Apex Court in view of the finding of fact of Tribunal observed that it is settled law that the finding of the fact of the Tribunal should be accepted by higher Court. It is not the case of the Revenue that while arriving at its finding, Panihati Rubber Ltd. had not passed on the amount of excise duty, and the Tribunal ha....
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....ontended that the ratio is not applicable as in CEAT case the assessment was provisional and not finalized when the refund arose. In CEAT case while the duty paid provisionally was passed on to the buyers and entire duty was shown as expenditure in the Books of Account. Further, as regards the reliance placed by the Revenue on the Sona Udyog Ltd. case, it was contended that the ratio of this decision is also not applicable to the facts of the present case as the manufacturer was charging sale price. In the case of Sona Udyog, contention was that the price had remained the same and hence, the facts herein are different as the assessee herein was charging sale price which included the duty payable on the sale price as per commercial invoice. The respondent was not collecting the higher duty and it was paid as per the excise invoice, which is evident from the fact that in the commercial invoice sale tax was paid on the price, which was lower and different than the price as per excise invoice. 5.2 So far the ruling of the Hon'ble Apex Court in the case of Allied Photographic India Ltd. (supra) is concerned, it was in respect of uniformity of price before and after the context of r....