2014 (11) TMI 540

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.... the Tribunal was right in holding that the incidence of duty on intermediate products captively consumed is to be treated as having been passed on to the customer of the final product, even though there was no change in the price of the final product before during and after the relevant period? 2. Whether in the facts and circumstances of the case, the Tribunal was right in applying the case law pertaining to incidence of duty on the final product, to the present case, where the issue is one of the incidence of duty on intermediate products captively consumed?" 2. The brief facts are as follows: The appellant/assessee had preferred a refund claim for Rs. 1,52,092.99 being the duty paid on ferrules made out of G.I.sheets, tin sheet....

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....office records both the above items have been consumed captively within the factory and that the same has not been sold to the outside buyers. On market enquiry on the buyers of the paper ring tubes it is reported that ferrules are not sold as such in the market and is used only in the manufacture of paper ring tubes. There is no separate market for ferrules as such and is used as an end part of the paper ring tubes. There is no evidence on file to show that ferrules and end caps are sold/marketed as such in the open market. Hence, it is an intermediate products used as part of paper ring tubes and paper containers. There is no separate market for the same. The value of the above ferrules and end caps have already been included in the va....

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....aper ring tubes, before, during and after the impugned period remained the same and therefore, they were eligible for the refund claim. The Commissioner of Central Excise (Appeals), while disposing of the appeal filed by the assessee, held as follows: "6. I have gone through the records of the case and carefully considered the submissions of the appellants. The appellants contend that the duty now claimed as refund has not been passed on to the customers because the price of paper tubes before the refund period, during the refund period and after the refund period has remained the same and therefore there is no question of passing on the duty incidence to the customers. In support of their above claim, they have furnished certificate fro....

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.... the incidence of duty has not been passed on to the buyer. The Tribunal also placed reliance on the decision of the Mumbai Tribunal in the case of Jyoti Structures Ltd. V. Commissioner of Customs & Central Excise Aurangabad reported in 2003 (156) E.L.T. 853 (Tri.Mumbai), to hold that if the price remained constant, it does not lead to an automatic presumption. Accordingly, the Tribunal following the above-said decisions, allowed the appeal filed by the Revenue. 6. Aggrieved by the order of the Tribunal, the assessee has filed the present Civil Miscellaneous Appeal. 7. Learned counsel appearing for the assessee submits that when the incidence of duty was on an intermediate product and the assessee is the consumer of the intermediary p....