2017 (3) TMI 643

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....on the Vermicelli cleared by them. As per the direction of the department the appellants paid duty. Thereafter they requested clarification from the department and vide letter dated 13.10.2011 the Additional Commissioner informed them Vermicelli is not a dutiable product. Thereafter the appellant filed refund of the amount of Rs. 2,84,320/- which was paid as excise duty on Vermicelli for the period 24.03.2011 to 13.08.2011. A show cause notice was issued proposing to reject the refund claim on the ground of unjust enrichment. After due process e of law, the original authority sanctioned an amount of Rs. 2,84,320/- and credited the amount to the Consumer Welfare Fund (CWF). An appeal was preferred against this order before the Commissioner (....

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....e the price adopted for paying duty was calculated by appellant to be Rs. 943.08/-. Even if excise duty was not paid by the appellant, the sale price as agreed upon would remain Rs. 990.08/- itself. That therefore no unjust enrichment of the amount would arise. The Ld. Counsel has relied upon the judgments laid in the case of Kerala Dinesh Beedi Workers C. Co-operative Society Ltd., Vs CCE C & ST, Calicut [2014 (301) ELT 98 (Tri.-Bang)], Union of India Vs Mulder India (P) Ltd. [2007 (212) ELT 31 9 (Kar)], Amadalavalasa Co-operative Sugars Ltd., Vs CCE, Visakhapatnam [2009 (15) STR 501 (Tri.-Bang.)] and CCE, Hyderabad-III Vs Kumar Metallurgical Corporation Ltd. [2008 (221) ELT 519 (Tri.-Bang)]. 3. Against this the Ld. AR Sh. P.S. Reddy re....

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....does not apply to our case. But the department did not refer to our submissions while issuing the impugned notice to us. We once again explain how our pricing is not influenced by the excise duty mentioned in our invoices. On receipt of order for vermicelli, we negotiate the price with the client and it would be inclusive of all duties and taxes. Thereon, we issue a sale order specifying this agreed price. This amount is fixed irrespective of the amount of duties and taxes liable to be paid by us. We collect this amount from the client whether we pay duties or taxes or not. For example, we cleared vermicelli in packs of various sizes to M/s. Sree Satyanarayana Traders, Kurnool vide invoice no.Ex-33 dt.4.6.2011. The relevant sale order is dt....

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.... produced the Chartered Accountant certificate who has certified that the duty Incidence has not been passed on to the buyers. 6. The presumption envisaged in Rule 12B is a rebuttable one. In the case of Amadalavalasa Co-operative Sugars Ltd., (supra) the Co-ordinate Bench of the Tribunal has referred to the judgment laid in Swaroop Fibre Industries Ltd., Vs Commissioner [2000 (120) ELT 510 (Tri)]. In para 5 of the said decision in Amadalavalasa Cooperative Sugars Ltd., the facts have been narrated which are almost similar to the case in hand. For better appreciation, the relevant paragraph is reproduced as under: 5. We have gone through the records of the case carefully. The issue is simple. The contract of the appellants with the bu....

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....ndents issued invoice to the buyer of the impugned product, they had mentioned the Excise duty which was paid under protest. However, the buyers did not avail any Cenvat credit and according to the contract with the buyer of the impugned product, the price paid by the buyer was inclusive of the duty. Since the duty element was shown in the invoice, Revenue contends that the duty has been passed on by the respondent to the buyer. This view of the Revenue is not correct. Whenever there is a contract which is inclusive of Excise duty, the price includes the duty only when the duty is payable. In such contracts whether the duty is leviable or not, the price contracted is fixed. In such cases, if it is held that the duty is not payable then we c....

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....he contract is inclusive of duty, the burden of duty cannot be said to have been passed on to the customers. (i) Southern Refineries Ltd v. CCE, Trivandrum - 2006 (199) E.L.T. 334 (Tri.-Bang.) (ii) Amadalavalasa Cooperative Sugars Ltd. v. CCE, Visakhapatnam - 2007 (219) E.L.T. 526 (Tribunal) 2007 (80) RLT 35 (CESTAT-Bang.) wherein it is held that when invoice showed duty and ex-duty price separately in invoice and on scrap being held non-excisable, refund of duty shown in invoice is not hit by bar of unjust enrichment as contracted price for scrap was inclusive of duty. In these circumstances, the Revenue's appeal has no merits. We dismiss the same. 9. Again, fin the decision of Kerala Dines Beedi workers C. Co-operative Soc....