2018 (7) TMI 771

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....ch 2015, they had cleared their goods to depots discharging duty @12%, instead of 6%, thereby excess amount of Rs. 9,65,963/- was paid by them. Realizing the mistake, they filed refund claim on 29/11/2015 for the said amount. A SCN was issued to them proposing rejection of the said claim and also for transferring it to the Consumer Welfare Fund in the event if it is not shown that the incidence of duty has been borne by the appellant and not passed on to others. On adjudication, the refund was sanctioned by the adjudicating authority. Aggrieved by the said order, the Revenue filed appeal before Ld. Commissioner (appeals), who in turn, set aside the adjudication order and allowed the Revenue's appeal. Hence, the assesse is in appeal. 3. L....

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....show that the burden of duty has not been passed on to the customers. The Ld. Authorized Representative has also placed a copy of balance sheet to show that the amount of refund received by them is reflected in the corresponding year as an income, hence, the burden is absorbed by them. In support he referred to the judgment of this Tribunal in the case of Girish Foods and Beverages Pvt. Ltd. Vs. Commissioner 2007 (211) ELT 388(Trb.) and Birla corporation Ltd. Vs. CCE,Lucknow 2017 (358) ELT 443(Tri.-ALL) 4. Ld. AR for the Revenue has submitted that the appellant has not produced the labels affixed to the jars which were cleared from the factory however from the laminates produced by the appellant MRP of Rs. 1.00 was shown on the respectiv....

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....upra). "7. We have examined the position. During the relevant period, the goods falling under Chapter heading 33.06 (which was the classification claimed by the Department) were chargeable to duty under Section 4A of the Act on the basis of the MRP. Accordingly, the clearances of Dant Manjan Lal were made under the Central Excise invoices by adopting the MRP less the abatement of 30% as the assessable value for arriving at the amount of duty payable. We find that the illustrative Central Excise invoice bears the remark as under : "MRP shown in this bill does not include central excise duty. The central excise duty paid on this bill is not recovered from the customer." In addition, the invoice is stamped by "Duty Paid Under Protest". S....

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....assing on the incidence of duty to the ultimate consumer is very much there inasmuch as the goods are printed with MRP and sold to the ultimate consumer on the MRP, which is inclusive of Central Excise duty. It is, therefore, evident that the incidence of duty has been passed on to the ultimate consumer. Had the ultimate consumer bought the goods at a price MRP minus the Central Excise duty then only it could have been inferred that the incidence of duty has not been borne by him. However, this is not the situation in the present case. Hence, the ratio of the Addison and Co. case law is not applicable to the facts of the present case. 8. The Hon'ble Supreme Court in the case of Sahakari Khand Udyog Mandal Ltd v. Commissioner of Central E....