2006 (1) TMI 22

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....invoice prices along with extracts from the balance-sheet to show that the incidence of duty had not been passed on to the customers. However, the Original Authority rejected the refund claim. The respondents appealed to the Commissioner (Appeals). They submitted that the Original Authority erred in transferring the refund claim to the consumer welfare fund on account of unjust enrichment. Even though, the Original Authority himself had observed that the prices of the imported items photo resister chemicals remained same prior to and post importation. This clearly showed that the ex amount of duty was not passed on. The 'Commissioner (Appeals) relying the Tribunal's decision in the case of CCE Chandigarh Vs. Metro Tyres Ltd. 1995 (80) ELT 4....

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....mmissioner reported in 2002 (148) ELT 809 Tri.), citing Mafatlal case has held that- a) If invoice is not separately showing the duty element, it does not mean that manufacturer is not passing on the incidence of duty to the customers not does it flow there from that the manufacturer absorbing duty himself. b) Ordinarily no manufacturer will sell his products at less than the cost price plus duty and if he does so he cannot survive in business. Only in case of distress sale such a thing is understandable Distress sales are not normal feature and cannot therefore constitute a basis for judging the validity or reasonableness of a provision As such the Tribunal held that the appellants have to satisfy with documentary evidence that bu....

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....ntention of the Department clearly indicates that they neither applied their mind to the Balance Sheets of the Respondent nor perused the finding of Hon'ble Commissioner of Customs (Appeals) in this regard. In this connection it is submitted that the above referred amounts indicated in Balance Sheet schedules for the years from 1998-99 to 2002- 03 varying from Rs. 13,247/- to Rs. 1,08,658/- are in fact furnished in Balance Sheets in thousands' (000s) and the above referred amounts have to corrected to be read as Rs. 1.32 crores to Rs. 10.86 crores. This clearly indicates that there was enough balance i 'Receivables' Account contrary to the contention of the Department in this regard. Therefore, there is no legal basis in the contention of t....