TaxTMI 
TaxTMI 
2019 (5) TMI 599
X X X X Extracts X X X X
X X X X Extracts X X X X
.... I hereby confirm the demand amount of Rs. 4,77,23,920/- (Rupees Four Crore Seventy Seven Lakhs Twenty Three Thousand Nine Hundred and Twenty Only) under Section73(2) of the Finance Act, 1994. ii. Recover of interest at the appropriate rate applicable during the relevant period of time, on the amount confirmed at i) above, from the date it became due till the date of payment, is hereby confirmed under Section75 of the Finance Act, 1994. iii. Penalty of Rs. 200/- per day or 2% of tax payable, per month whichever is higher, starting with the first day after the due date till the date of actual payment of the outstanding amount of service tax, is imposed under Section 76 of the Finance Act, 1994, subject to the maximum, specified in Section76 of the Finance Act, 1994 as it existed at the material time, for failure to pay appropriate service tax. iv. For failure to obtain Registration for Advertisement Service as required under Section69 of the Finance Act, 1994 read with Rule 4 of the Service Tax Rules, 1994 a penalty of Rs. 5000/- or Rs Two Hundred everyday during which such failure continues, whichever is higher, is imposed, under the provisions of Section77 of the Chapter ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ervice Tax short paid by the assessee, under Section78 of the Finance Act, 1994. Further if the assessee pays the demand amount confirmed as per i) above along with the interest payable thereon as per ii) above within thirty days from the date of communication of the Order, the amount of penalty liable to be paid by the assessee shall be 25% of the demand amount confirmed at i) above, provided further that the reduced penalty is also paid along with the confirmed amount and interest as mentioned above." 1.4 By the order in appeal dated 22.03.2012, Commissioner (Appeals) IV Central Excise Mumbai Zone - I, (Appeal No ST/466/2012) upheld the order in original dated 22.05.2009 of the Assistant Commissioner Service Tax Division IV Mumbai rejecting the refund claims filed by the appellant. By his order Assistant Commissioner has held as follows: "7. In light of the findings as above, I reject all the five refund applications filed by M/s Neeta Tours and Travels, on 17.10.2008 as detailed below, under Section 11B of Central Excise Act, 1944 as made applicable to service tax by virtue of Section 83 of Chapter V of Finance Act, 1994. S No Period Amount 1 2002-03 Rs. 7,94,291/....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rty Four Thousand Only) only for the period 2005-06 and 2006-07 along with interest due amounting to Rs. 22,02,791/- (Rupees Twenty Two Lakhs Two Thousand Seven Hundred and Ninety One Only). 2.7 For the period 01.04.2007 onwards though they had provided tour operator service (point to point bus service) (upto 05.07.2009), tour operator services (Chartered Bus Service) (upto 31.03.2010) and advertisement services (upto 31.03.2010) they had not filed ST-3 returns in respect of the services provided nor have paid any service tax in respect of these services rendered. 2.8 After completion of investigations a show cause notice dated 23.08.2010 was issued to the appellants demanding service tax payable and not paid by them during the period as indicated below: S No Taxable Service Period Service Tax Demanded' Rs From To 1 Tour Operator (Point to Point) Apr 07 05.07.2009 4,42,99,945 2 Tour Operator (Chartered Bus) Apr 07 31.03.2010 33,70,305 3 Advertisement Services Apr 07 31.03.2010 53,670 Total 4,77,23,920 2.9 The show cause notice at para 2.8 was adjudicated by the Commissioner as per his order in para 1.2, supra. Agg....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ession and control of the Bus is passed on to the recipient of services, and in terms of Article 366 (29A)(d), such transactions could be subject to levy of taxes under entry 54 of State List has been held by the following decisions; a. Krishna Chandra Behera and Another [1991 (083) STC 0325 ORI] b. Sri Ram [2009 (020) VST 0747 (ALL)] c. HLS Asia Ltd [2007 (8) VST 314 (Gauhati)] d. Peerless Shipping and Oilfield Services Ltd [2007 (008) VST 030 (Gauhati)] viii. Reliance placed on Rashtriya Ispat Nigam Ltd [(2002) 3 SCC 314] is not proper as the appellants have transferred the possession and control of the said buses to the customer and once transferred they were excluded from transferring the same to someone else. Hence the test laid by the Apex Court in case of BSNL [(2006) 3 STT 245 (SC)] has been satisfied ix. They had paid service tax on Chartered Bus Services under protest on 05.03.2012 x. Non payment of tax in respect of the three demands made in the show cause notice was under bonafide belief that they were not required to service tax under the said categories and as such there was no fraud, suppression, wilfull misstatement or any intention to evade ser....
X X X X Extracts X X X X
X X X X Extracts X X X X
....1) ELT 20- (SC)] * In respect of 26 Contract carriages with them in para 68 of the impugned order Commissioner has observed that they have not proved that they have satisfied the condition No 12 of the license issued to them. There is no such allegation in the show cause notice hence Commissioner has travelled beyond the scope of show cause notice. * Further he has failed to establish that these contract carriages were used under a contract for fixed set of passengers and the vehicle has not been used for tourism, conducted tours, charter or hire services. They had produced a Certificate No TC/MS/D-1/Misc/2012 dated 10.02.2012 from transport Commissioner Maharastra, that the permits issued to the appellant for air conditioned and non air conditioned buses for transportation of passengers are contract carriage permits. They had submitted the schedule for point to point transportation of passengers on contract carriage basis and also copies of bus tickets. They have complied with all the conditions of the Motor Vehicle Act and the rules made thereunder. No action has been taken by the State Transport Authority for violation of any of the condition of license. * In respect of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y are operating "Contract Carriages" for interstate and intrastate transportation of passengers on point to point to point basis. * The issue raised in the present appeal are squarely covered by the following decisions: * Secy Federn of Bus Operators Assn of T N [2006 (2) STR 411 (MAD)] * A P State Road Transport Corporation [2018 (8) GSTL 441 (T-Hyd)] * Alok Prakash [2018 (8) GSTL 266 (ALL)] * V K Rakesh, R R Travels [2016-TIOL-1706-HCKer- ST] * Hans Travels [2016 (42) STR 94 (T-Del)] * The claim of appellants that the services provided by them have been exempted retrospectively from 01.04.2000 by Notification No 20/2009-ST read with the Corrigendum issued to the notification ad Section 72 of the Finance Act, 2011 is not correct in law. * While notification No 20/2009 read with the Corrigendum dated 31.08.2009 exempts the "taxable service referred to in sub clause (n) of clause (105) of Section 65 of Finance Act, provided or to be provided to any person, by a tour operator having a contract carriage or tourist vehicle with a permit for inter-state or intrastate transportation of passengers, excluding tourism, conducted tours, charter or hire service", only ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ts to be displayed inside their buses against the charges for displaying the same. Such services of displaying the advertisement clearly fall under the taxable category of sale of space or time for advertisement services and hence liable to service tax. * Extended period of limitation has been rightly invoked as appellants have during the material period not filed any service tax returns. In fact they were filing the returns earlier but suo motto stopped filing the same from 1.04.2007. They had also failed to take registration in respect of advertisement services provided by them. * Penalties and interest demands to arte justified in view of the failure of appellant to pay the service tax by the due date and comply with procedural requirements/ obligations cast on them. 5.1 We have considered the impugned order along with the appeal and submissions made during the course of arguments. 5.2 The demands made on the appellants can be put in three categories viz (a) Tour Operator Services (Chartered Bus Booking) (b) Tour Operator Service (Point to Point Bus Service) & (c) Advertisement Services. Taxability under the category of Tour Operator Services [category (a) & (b)] 5....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sessees are squarely covered by the main part of the definition of "tour operator" under Section 65(115) of the Finance Act, 1994 w.e.f. 10-9-2004. We note that the meaning of "tour operator" assigned by Parliament prior to 10-9-2004 continued on the statute took as it stood incorporated in the inclusive part of the definition of "tour operator" from 10-9-2004. The assessees who were engaged in the business of operating tours in tourist vehicles covered by permits granted under the Motor Vehicles Act, 1988 or the rules made thereunder were covered by this meaning of "tour operator" also. The findings recorded by the authorities below on the taxability of the assessees' activities are well-founded. The assessees have no case on merits." 5.4 In case of Hans Travels [2016 (42) STR 94 (T-Del)] following has been held- "4. As regards remaining demand under tour operator service, it is a fact that the appellant was granted licence to operate buses as contract carriages and not as stage carriages. The contention of the appellant that it operated its buses as stage carriages does not alter the category of its buses from contract carriages to stage carriages. Tour is defined under Sect....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e period from April, 2000. The adjudicating authorities will have to examine their claim for exemption on merits, untrammelled by our prima facie view." It is to be noted that in the above (Ideal Travels) case, CESTAT categorically stated that the adjudicating authority was to examine the applicability of Notification No. 20/2009-S.T., dated 7-7-2009 on merits and should not be influenced by prima facie views expressed by it (i.e., the Tribunal)." 5.5 In respect of the demand made under category of Tour Operator Chartered Bus Services, appellants had contested the demand stating that they have provided the bus to charterer. The transfer of right to use the bus is a deemed sale in terms of Article 366 (29A) and can be taxed only under entry 54 of the State List. They have placed reliance on a various decisions in this respect. Commissioner has in para 71 to 77 of his order considered the submissions by the Appellant in his order and recorded as follows: "71. The department's contention appears to be correct as the Government made its intention clear to include the Chartered Bus Service in the taxable Tour Operators Service by specifically excluding the same in the Exemption ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he decision of High Court of Andhra Pradesh and observed as under: a ..... that the transaction did not involve transfer of right to use the machinery in favour of contractors. The High Court was right in arriving at such conclusion. In the impugned order, it is stated, and rightly so in our opinion, that the effective control of the machinery even while the machinery was in use of the contractor was that of the respondent company; the contractor was not free to make use of the machinery for the works other than the project work of the respondent or move it out during the period the machinery was in his use; the condition that the contractor would be responsible for the custody of the machinery while it was on the site did not militate against respondent's possession and control of the machinery. 75. The Hon'ble Supreme Court of India in the case of Bharat Sanchar Nigam Ltd. v. Union of India [2006] 3 STT 245 (SC), eloquently described the determinative test to decide the nature of transaction in the cases of transfer of the right to use and held as under: 87. To constitute a transaction for the transfer of the right to use the goods the transaction must have the following....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... Learned Counsel pointed out that the petitioners were trying to fix the nature of the tax on the basis of its "measure". Mr. Chandrasekaran argues that in reality the argument in respect of entry 56 is based on the language of Section 67(m) and (n). He points out that as the "gross amount" charged from the customers or passengers is the value of the "taxable service" according to these sections. Therefore, it is being urged by the petitioners that in reality it is a tax on passengers. The learned Counsel argues that a basic error is being committed in this and that is the "nature of the tax" is being decided on the basis of the "measure of the tax". He points out that provisions in Section 67(m) and (n) are the measures of the tax and the "measure of the tax" could never be used for deciding the nature of the tax. The learned Counsel relies on the celebrated decision reported in A.I.R. 1961 S.C. 1480 (Sainik Motors case), cited supra, and points out that the principle in that case has been followed throughout right up to the decision in Federation of Hotels and Restaurants case, cited supra, wherein in paragraph 17, the Supreme Court held as under : "The subject of a tax diffe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dred rupees or more per day per individual. The term "chargeable expenditure" was defined by Section 5 of that Act and included the expenditure incurred in or payments made in such class of hotels in connection with the provisions of any accommodation, residential or otherwise; or food or drink by the hotel, whether at the hotel or outside, or by any other person at the hotel; or any accommodation in such hotel on hire or lease; or any other services envisaged in that section. The challenge was on the ground that this tax, which was being imposed under Entry 97 of List-I under Article 248 of the Constitution of India was beyond the legislative competence as in fact, this expenditure tax was squarely covered under Entry 62 of List-II which pertained to the taxes on luxuries, including taxes on entertainments, amusements, betting and gambling and also could be covered under entry 54 of List- II as the transaction in question also amounted to "sale of food stuff (goods)" to the customers. The Supreme Court upheld the validity of the levy of the tax. The Supreme Court accepted that the said tax could have and had "distinct aspects". 83. The Apex Court recognised the said "distinct a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... tours, charter or hire service, from whole of the service tax leviable thereon under section 66 of the said Finance Act." 5.8 Explaining the intent of Notification, JS(TRU), has vide his letter issued vide D O F No 334/13/2009-TRU dated 6th July 2009, stated in para 6.1 as under: "6.1 Private bus operators, who operate buses on specific inter-state or intra-state routes, are required to pay service tax as they ply their buses having 'contract carriage permits' and thus fall within the definition of tour operators. On the other hand the State Undertakings run buses, which run on the same route carrying passengers, are not subjected to service tax as these buses bear 'stage carriage permit'. In order to bring parity between the two, the services provided by the tour operators undertaking point-to-point transportation of passengers in a vehicle bearing contract carriage permit is being fully exempted from service tax, provided such transportation is not in 1 Prior to the corrigendum dated 31.08.2009 it read as "contract carriage permit" relation to tourism or conducted tours, or charter or hire. (Notification No. 20/209-ST dated 07.07.09 refers)." 5.9 On the dated when the Noti....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... a printed book". 12. In "The Concise English Dictionary", 1982 Edition, page 253 meaning of "corrigendum" is "an error needing correction, esp. in a book". 13. In "Black's Law Dictionary" Eighth Edition at page 370, meaning of "corrigendum" is, "an error in a printed work discovered after the work has gone to press". 14. In "Legal Dictionary" along with Foreign Words and Maxims including Latin Maxims by Prafulla C. Pant, Second Edition, Reprint 2007, at page 118, the meaning of "corrigendum" is, "a thing to be corrected, esp. an error in a printed book". 15. This Court has also considered the nature of corrigendum in Commissioner, Sales Tax, U.P., Lucknow v. Dunlop India Limited, 1994 (92) STC 571 and said : "In my opinion, Notification No. 4841 is in the nature of a correction (corrigendum) and, therefore, it dates back to the date of the notification corrected thereby, namely, June 11, 1974, on which date Notification No. 3867 was issued. A correction is a correction only when it dates back to the original order or the proceeding as the case may be. It ceases to be correction if it is effective from the date of its issuance; it then becomes an amendment. This intr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....respect of the services specified in the said notification from the date of effect of notification. Retrospective Effect to the Notification 20/2009-ST. 5.12 Section 75 of the Finance Act, 2011 reads as follows: "75. (1) The notification of the Government of India in the Ministry of Finance (Department of Revenue) number GSR 492(E), dated the 7th July, 2009, issued in exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994), granting exemption from the whole of service tax leviable under section 66 of that Act to any person by a tour operator having a contract carriage permit for inter-State or intra-State transportation of passengers, excluding tourism, conducted tour, charter or hire service, shall be deemed to have, and deemed always to have, for all purposes, validly come into force on and from the 1st day of April, 2000, at all material times." 5.13 Thus by Section 75 of Finance Act, 2011, the date from which said notification No 20/2009-ST dated 7th July 2009 would have come into effect has been declared as 1st April 2000. Revenue has in their submission specified that this Section is silent in respect of the corrections....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of a contract carriage is that it should be a motor vehicle which plies under a contract for a fixed set of passengers, and does not allow any other passenger to board or alight from the carriage at will. Tourist Vehicle can be treated as Contract Carriage if it satisfies the above condition. 67. Now the question comes whether the service provided by the assessee falls in the category of service provided by a 'tour operator having a contract carriage with a permit for inter-state or intrastate transportation passengers". Shri Sunil Savala, the partner in M/s. Neeta, has stated in his statement dated 01.07.2010, recorded under Section 14 of the Central Excise Act, 1944, read with Section 83 of the Finance Act 1994, that they are operating buses registered under the permit of Tourist Vehicles which transported passengers from Mumbai to various destinations. 68. Further from the various documents produced by the representative of the notice during the course of investigation to the investigating officer and from the statement by Shri Sunil Savla, partner of M/s. Neeta, recorded under section 14 of Central Excise Act 1944, read with Section 83 of Finance Act 1994, on 27.07.2010,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ut which exempts such services. By putting these services under exclusion category in the Notification it is clear that these category of taxable services are not being exempted. Taxability under the category of Advertisement Services [category (c)] 5.19 Para 6 (iv) of the of the Show Cause Notice reads as follows: "6(iv) had also provided advertisement services during the period 2007-08 to 2009-10 and received amount, detailed in Annexure C to this notice, by displaying advertisements of various clients inside their buses but had not declared and added this service in their registration certificate, issued under Section 69 of the Finance Act, 1994 read with Rule 4 of Service Tax Rules, 1994. Neither had they made the payment of Service Tax thereon nor filed the ST-3 returns." 5.16 Para 7(iv) reads as follows: "7. The scrutiny and investigation of the records revealed that: i-iii. ......... Iv although they were also rendering as mentioned in para 6(iv) advertising services, they had failed to declare and add this service in their registration certificate issued under section 69 of the Finance Act, 1994 read with Rule 4 of Service Tax Rules, 1994." 5.17 Para 9....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ther made the payment of Service Tax nor filed ST-3 returns of chartered bus services falling under tour operator's service during the period 1.04.2007 to 31.03.2010. However, they had been charging and recovering Service Tax from their clients from 01.04.2009 onwards on their invoices for this service but not depositing the same with government." 5.21 In para 91 of his order after referring to order of tribunal in case of Karnataka Soaps [2010 (25) ELT 62 (TBang)], Century Tiles Ltd [2009 (236) ELT 583 (t-Ahmd)] and Sew Construction Ltd [2011 (022) ETR 666 (T-Del), Commissioner has concluded holding the charge of suppression against the appellants stating "In the present case also the assessee have not filled ST-3 returns during the period 2007-08 to 2009-10. They have filed the ST-3 Return for the period 2005-06 to 2006-07 and paid the service tax for the same period only after the case was booked against them. However from April 2007 on wards they have suddenly stopped filing ST-3 return without even informing or consulting with the department, they have also failed to declare and add Advertisement Services in the registration Certificate. Shri Sunil Savia, the partner in M/s ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 5 2006-07 17.10.08 05.07.06, 03.04.07, 19.10.07, 31.10.07 1,21,01,718/- 6.2 After issuance of the Show Cause notice, and following the principals of natural justice, Assistant Commissioner rejected the refund claims filed by the appellant holding in his order as follows: "4...... I find that M/s Neeta Tours and Travels are not eligible to the refund of service tax already paid or any exemption as claimed, in terms of Notification No 15/2007- ST dated 04.04.2007 issued under Section 11C of the Central Excise Act, 1944. I also observe with regard to the claim of assessee that payments are made under protest and hence time bar criteria is not applicable in the instant case, I find that assessee has failed to produce copy of any representation made with regard to the payments made under protest.. I also find from the copy of St-3 Returns for the relevant period and the statement showing the details of payment of service tax that assessee have collected the gross amount inclusive of service tax as they have not produced any evidence to the fact that the same have not been recovered and also the receipts do not show any kind of tax levied. I, therefore, find that assessee ha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Commissioner (Appeal)-IV, Central Excise goes against them." 7.2 Arguing for the appellants learned counsel submitted that this appeal has become infructuous as the refund applications filed by them pursuant to the amendments made by the Finance Act, 2011 for the same period have been allowed by the Commissioner (Appeal in their favour. In para 1.2 of their written submissions they have stated, "Appeal No ST/466/2012 is appeal relating to refund of service tax paid by the appeal on account of point to point transportation of passengers in bus for the period from 2002-03 to 2006-2007. However the said appeal has become infructuous in view of the subsequent developments and consequent sanction of the refund amount to the appellant herein." 7.3 Arguing for the revenue learned authorized representative reiterated the findings of the lower authorities. 8.1 We have considered the submissions made in appeal, and during the course of arguments along with the impugned order. 8.2 The easiest course for deciding this appeal is to dismiss the appeal as infructuous on the basis of submissions made by the appellants. However we find that the issue on which the Commissioner (Appeal) has u....
X X X X Extracts X X X X
X X X X Extracts X X X X
....25.08.2009. The said appeal has been disposed by the Commissioner (Appeal) by the impugned order before us. When the Commissioner (Appeal) has disposed of the said appeal by the impugned order then which is the order passed in 2016. Secondly by the impugned order Commissioner (Appeal) has decided the issue against the appellants on ground that the burden of tax paid has been passed on to the recipient of services. Till the time this finding of Commissioner (Appeal) is set aside, the refund could not have been made to the appellants even in terms of retrospective amendment made by the Finance Act, 2009. Explanation appended to the said validation provision in Finance Act, 2011 reads as follows: "Explanation.-For the removal of doubts, it is hereby declared that the provisions of section 11B of the Central Excise Act, 1944 (1 of 1944), shall be applicable in case of refunds under this section." Thus the bar of unjust enrichment as enshrined in Section 11B still needs to be satisfied before the refund could have been paid to the appellant. The order of Commissioner (Appeal) holding that appellants have passed on the burden of the service tax paid on to the recipient of services h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....unt and other relevant records in relation to the Fund in such form as may be prescribed in consultation with the Comptroller and Auditor-General of India." 14.Though different provisions governed the subject of refund during different times, there is one feature uniformly common to them all, viz., they purport to be exhaustive on the subject of refund and they provide a period of limitation for making such claims. Rule 11, as it stood prior to August 6, 1977, not only carried the title "No refund of duties or charges erroneously paid unless claimed within three months", it provided specifically that no duties/charges "shall be refunded unless the claimant makes an application for such refund under his signature and lodges it to the proper officer within three months from the date of such payment or adjustment, as the case may be". Similarly, Rule 11, as it obtained between August 6, 1977 and November 16, 1980, provided that claims for refund shall be made "before the expiry of six months from the date of payment of duty". (Of course, this period of limitation did not apply where the duty was paid under protest.) Sub-rule (4) of Rule 11 provided in express terms that "save as ot....
X X X X Extracts X X X X
X X X X Extracts X X X X
....laim shall be entertained except under and in accordance with the said provisions) has never been challenged seriously. Though in certain writ petitions now before us, validity of Section 11B (as amended in 1991) is challenged - which challenge is dealt with hereinafter and rejected - the main submission of Sri F.S. Nariman, leading the arguments on behalf of the appellants-petitioners has been that these provisions do not preclude the filing of a suit or the filing of a writ petition claiming refund where the tax has been collected contrary to law by virtue of Article 265 of the Constitution and that the question of passing on the burden of duty is totally irrelevant in the matter of refund. Once the provisions of the Act including the aforesaid provisions, viz., Rule 11 and Section 11B, as they stood from time to time, are taken as valid and effective, they constitute "law" within the meaning of Article 265. It may be remembered that the aforesaid provisions relating to refund have always been accompanied by and are complimentary to the provisions relating to recovery of duties legitimately due under law, but not collected. The recovery provisions also contained and do contain a ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... duty forming part of the price at which the goods are sold. Section 12B creates a rebuttable presumption of law that every person paying the duty shall be deemed to have passed on the full incidence of duty to the buyer of such goods. Section 12C provides for the establishment of the Consumer Welfare Fund (Fund) while Section 12D provides for rules being made to specify the manner in which the monies in the Fund shall be utilised. Rules have indeed been made under Section 12D, which provide for grants being made to Consumer's Welfare Organisations for being spent on welfare of consumers. 91.It is next contended that in a competitive atmosphere or for other commercial reasons, it may happen that the manufacturer is obliged to sell his goods at less than its proper price. The suggestion is that the manufacturer may have to forego not only his profit but also part of excise duty and that in such a case levy and collection of full excise duty would cease to be a duty of excise; it will become a tax on income or on business. We are unable to appreciate this argument. Ordinarily, no manufacturer will sell his products at less than the cost-price plus duty. He cannot survive in busine....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he manufacturer/assessee and that he cannot disclaim his liability on the ground that he has not passed on the duty. This is undoubtedly true but this again does not affect the validity of Section 12A or 12B. A manufacturer who has not passed on the duty can always prove that fact and if it is found that duty was not leviable on the transaction, he will get back the duty paid. Ordinarily speaking, no manufacturer would take the risk of not passing on the burden of duty. It would not be an exaggeration to say that whenever a manufacturer entertains a doubt, he would pass on the duty rather than not passing it on. It must be remembered that manufacturer as a class are knowledgeable persons and more often than not have the benefit of legal advice. And until about 1992, at any rate, Indian market was by and large a sellers' market." 8.6 In view of the decision of the Apex Court in case of Mafatlal Industries we do not find any illegality in the order of Commissioner (Appeal). 8.7 Further in their grounds of appeal, appellants have put forth an interesting concept of protective appeal. We are unable to comprehend the said concept, because such protective appeals are not envisaged in....