TaxTMI 
TaxTMI 
2006 (11) TMI 50
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....compounded levy scheme under Rule 96ZQ of the erstwhile Central Excise Rules, 1944. They were paying duty on the annual capacity determined by the Commissioner, Central Excise. The duty was paid on the basis of size of the chamber. A doubt arose whereby the duty was also demanded on the galleries which were a pollution control equipment. The size of the galleries were treated as liable to duty and they paid the duty for the said period amounting to Rs. 80,000/- per month and the total amount for 3 months comes to Rs. 2,40,000.00. They submitted the refund claims to the department for the aforesaid 3 months as the Commissioner (Appeals). Customs and Central Excise, Chandigarh hold that the galleries were not liable to duty vide order-in-a....
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.... submitted that the Balance sheets of the appellant for the relevant period showed the amount as receivable. It was also submitted that the CA's certificate clearly shows that the amount paid by the appellant is not accounted in the Trading and Profit and loss account hence the cost of the fabrics would not include the amount of refund claimed. 5.The learned DR on the other hand submits that the non-charging of the amount in Trading and Profit and loss account would not indicate that the cost of fabrics is arrived at excluding the amount. It was also submitted that the appellant has not produced any evidence that the incidence of duty has not been passed by them. It was his submission that the Invoices of the appellant indicate that the ....
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....e that they have not passed the incidence of duty paid on the galleries to the customers. The adjudicating authority has applied the doctrine of unjust enrichment and passed the order directing crediting the amount to the Consumer Welfare Fund. As regards, the contention of the Appellant that the amount of duty in respect of Galleries has not been debited to the Trading/profit and loss account and has been stood with balance sheet on the asset's side as "Advance recoverable in cash or kind". I observe that the findings of the adjudicating authority on this issue are very clear & reasonable. I agree with these findings merely showing this duty as advance recoverable does not by itself establish that the amount has not been recovered from ....
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.... they recovered the same from the parties/buyers. It is observed that the prices of the fabrics were not cost data based. The overall price structure of the product contains both direct and indirect elements and that a particular expenditure has not been charged to the trading/profit & loss account does not indicate that it was not recognized or taken into consideration while determining the sale price. This is all the more relevant here because the element of excise duty paid on galleries was known in advance to the noticee. Therefore, the argument that it has not been recovered from the customer is not tenable. The company is also not running in loss as the gross profit during 1999-2000 was Rs. 91,49,497.14. Thereby, the portion of the....
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....99 15-7-1999 80,000 14-8-1999 15-8-1999 80,000 Further certified that the company has neither debited the amount to Manufacturing, Trading and Profit & Loss Account nor recovered the above said amount from the Parties/Debtors. The above information has been verified from the books of accounts, T.R. 6 challans and P.L.A. register maintained by the M/s Gopi Krishna Processors Pvt. Ltd., Asr. For Lochan Kundra & Associates Chartered Accountants Place : Amritsar Dated : 4-6-2003 Sd/- (Lochan Kundra) Partner Membership No. 86249" 9.The reading of the above-reproduced certificate would indicate that the CA has gone in to the accounts of the appellant as....
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....hartered Accountant certificate dated 24-12-1999 also certifies that there is a debit balance of Rs. 10,13,895/- in the excise duty refund receivable as on 30-9-2000 as per the accounts of the company. The balance sheets and records of the appellant and M/s Madura Coats Ltd. as on 31-12-1997 and 31-12-1997 also reveals that this amount is borne by the appellant. This clearly indicates that they have not reimbursed the duty amount. The affidavit dated 1-3-2000 of Shri Hariharan Finance Manager of M/s Madura Coats clearly indicate that duty was paid under protest by the appellants and the same has not been reimbursed to them. In view of this evidence, they are eligible for the refund with consequential relief. The appeal is allowed with conse....