TaxTMI 
TaxTMI 
2016 (11) TMI 1581
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....on to the blended yarn of Chapter Heading 55.05. 4. The assessee paid duty at the higher rate of duty applicable to Chapter Heading 55.06 under protest, for the period from 10-1-1986, duly following the procedure prescribed under Rule 233B of the Central Excise Rules, 1944. They filed a refund claim on 18-3-1988 for refund of excess duty paid during the period from Jan. 86 to Dec. 87 and three refund claims all on 5-7-1990, relating to the period from Jan. 88 to March 90. 5. The Central Excise Tariff Act, 1985 came into force with effect from 28-2-1986. The above dispute relating to classification for the period from 28-2-1986 under the new tariff was decided by the Tribunal in favour of the assessee in Priyadarshini Spinning case reported in 1990 (50) E.L.T. 145. In the light of the said decision, Board vide Circular No. 23/90 (F No. 55/9/88/CX-l), dated 1-11-1990 clarified that the yarn manufactured out of viscose staple fibre and NCSW is classifiable under Heading 55.05. This clarification supported the classification of the product as claimed by the assessee. 6. The assessee also filed another refund claim on 28-11-1990 for refund of excess duty paid dur....
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....nces like gate passes have not been filed by the assessee so as to ascertain as to whether burden of duty has been passed on to the buyers or not. Accordingly, he issued five show cause notices all dated 30-9-1994 to show cause as to why the said refund claims should not be credited to the Consumer Welfare Fund, as the assessee had failed to establish that the excess duty burden was not passed on to the buyers. 10. The assessee filed reply claiming that they have not passed on burden of additional duty to the buyers and submitted the following documents, in support of their claim : (a) Letters from a cross-section of their customers located at different places in India. (b) Affidavit from some of their customers located at different places in India. (c) Photocopies of contemporary sales journal (running in hundreds of pages) containing information of all the invoices, supported by affidavits of the Chartered Accountant Shri A.K. Agarwal dated 24-8-1995, that all the entries in these sale journals have been checked by him and found to be correct. (d) ....
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....cts and circumstances of case, Tribunal was justified in not accepting the claim of the assessee that when excise duty of superior goods as well as inferior goods were charged at the same rate by the non-petitioner is not liable to pay excess Excise duty, which has been recovered from the customers on sale of inferior goods i.e. on N.C.S.W. Yarns and 'whether the Tribunal was justified to direct the Department to pay back the amount, which was recovered from the non-petitioner on account of excess excise duty recovered from the customer by it?" 13. This Court also framed the following substantial question of law : "Whether in the facts and circumstances of case, Tribunal was justified in not accepting the claim of the assessee that when excise duty of superior goods as well as inferior goods were charged at the same rate by the non-petitioner is not liable to pay excess Excise duty, which has been recovered from the customers on sale of inferior goods i.e. on N.C.S.W. Yarns and whether the Tribunal was justified to direct the Department to pay back the amount, which was recovered from the non-petitioner on account of excess excise duty recovered from the customer b....
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....the Tribunal having recorded a clear finding in favour of the respondent holding it entitled to refund with the Commissioner (Appeals) passing order in consonance with the order of the Tribunal, the challenge to the order of the Commissioner (Appeals) is totally misplaced. It was submitted by learned DR that interim order may be passed subject to the order of the High Court. We are of the view that refund of the amount pursuant to the impugned order of the Commissioner itself shall be subject to the order of the High Court and, therefore, no such order at our end is unwarranted. We are also of the view that passing any order of stay will virtually amount to reviewing the previous order which is not permissible. The Tribunal can only rectify errors apparent on the face of the record and any interim order of the stay would only stall implementation of the Tribunal's order which will not be appropriate on our part to do. We, indeed, find no ground to entertain the appeal which is accordingly dismissed along with stay application." 19. Reference filed by the Revenue was found meritless and misc. application was also dismissed by order dated 9th June, 2008. The same was carried ....
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....customs duty. It is an admitted position that the burden to prove that the customs duty was not passed on to the customers is on the assessee. The Member (Technical) and the third Member on the basis of the following facts : (i) in the invoices, it was clearly mentioned that the sale price did not include the customs duty. (ii) that there was no change in price post-levying of the duty. Assessee had filed its price list and the customs duty was imposed thereafter. The goods were sold to the customers at the same price which was stated in the price list. (iii) that there was an auditor's certificate certifying that assessee had not passed on the customs duty to the customers. Came to the conclusion that the assessee had not passed on the burden of the customs duty to its customers. This finding is a finding of fact based on evidence which does not call for any interference. Accordingly, this appeal is dismissed. No costs." 22. He has also taken us to the decision referred in 1996 (82) E.L.T. 95. Tribunal's judgment in the case of Collector v. Metro Tyres Ltd. whereby the Tribunal has held as under : "The Appellate Trib....
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....mount from its customer. Both the Commissioner (Appeals) and the Tribunal have found from the facts on record that the presumption under Section 12B of the Act has been rebutted by - (1) certificates from the Chartered Accountants of the assessee as well as its customer; (2) balance-sheets along with auditors, reports of both the seller and the purchaser; (3) letter dated 20-3-1998 issued by the purchaser; (4) affidavit of Shri P. Deora, Director of the assessee, affirming on oath that the differential duty had not been recovered by the assessee from its customer. In light of this evidence there is no reason why the concurrent findings of fact recorded by both the Commissioner (Appeals) and the Tribunal should be interfered with. On evaluation of two sets of evidence before them, the appellate authorities have found that the evidence produced by the assessee is more acceptable and the onus which lay on the assessee stands discharged. Sufficiency or otherwise of evidence cannot be a ground for interfering with findings of fact, if on the basis of evidence on record the conclusion is sound and reasonable and not perverse." 25. It is also contended that decision of 1991 (55) E....
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.... upheld and the Revenue will get the duty, though after some delay which such procedure would entail. 8. We have dealt with this aspect at some length, because it has been suggested by the Learned Additional Solicitor General that the observations made by the High Court, have been harsh on the officers. It is clear that the observations of the High Court, seemingly vehement, and apparently unpalatable to the Revenue, are only intended to curb a tendency in revenue matters which, if allowed to become widespread, could result in considerable harassment to the assesses-public without any benefit to the Revenue. We would like to say that the department should take these observations in the proper spirit. The observations of the High Court should be kept in mind in future and the utmost regard should be paid by the adjudicating authorities and the appellate authorities to the requirements of judicial discipline and the need for giving effect to the orders of the higher appellate authorities which are binding on them." 26. Taking into consideration the aforesaid, he contended that for the refund which was due in 1990, he was deprived for almost 26 years. 27. We ha....