TaxTMI 
TaxTMI 
TaxTMI 
2019 (6) TMI 1139
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....he order passed by the Assistant Commissioner. On further challenge by the appellant, High Court of Bombay set-aside the order and remanded the matter back to the Assistant Commissioner for ascertaining whether the refunds arising on finalization of provisional assessments have already been recovered by the Appellant from the customers or not. The Hon'ble High Court held that it will be open to the Appellant to adduce additional evidence, if any, in support of its contention that the duty element has not been passed on to the customers in respect of the goods cleared on provisional assessment during the period from 1992 to 1997. In the remand proceedings the Assistant Commissioner and on appeal the confirmed the original order. Commissioner (Appeals) vide the impugned order, YDB/35/MIII/ 2009 dated 17.07.09 has upheld the order of Assistant Commissioner. 2. Learned counsel for the appellants, Shri Vipin Kumar Jain, submits that presumption that the incidence of duty has been passed on to the customers is a rebuttable. Hon'ble High Court held that it will be open to the Appellant to adduce additional evidence, if any, in support of its contention that the duty element has not been ....
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....f State of Rajasthan v. Hindustan Copper reported in (1998) 9 SCC 708, that the selling price of the product being market driven prices, the presumption under Section 12B stood rebutted by the mere establishment of this circumstance. Section 12B of the Act, nowhere states that burden should be discharged by providing documentary evidence alone. Appellant do not sell any goods to the customers from the factory gate; all clearances from the factory gate are to their depots. Though the price charged to the customers was all inclusive, no reimbursement towards excise duty was ever sought from the customer in the invoices No part of the duty paid formed part of the price at which the goods were ultimately sold to the customer. Therefore, as the same was to be borne by them and not to be recovered, the Appellant did not indicate on any of its excise invoices issued at the time of clearance of goods any amount of duty which was to form part of the price at which the goods were to be sold. Thus, requirement of Section 12A stood satisfied. It cannot be concluded, on the basis that once the amount of duty is shown in the excise invoices, the same is deemed to have been passed on. The Appella....
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....ant has been able to increase the selling price of goods consistently even though there has been fall in the cost of production and rate of duty; the Appellant over the period of time has been able to establish their brand and command higher price. As submitted, Apex Court in the case of State of Rajasthan Vs Hindustan copper (supra) held in unequivocal terms that where prices are market drive, incidence of duty cannot be said to have been passed on. The decision has been followed in a series of decisions by Courts /Tribunals. (i). CCE, Bhubaneswar - II Vs Indian Aluminum Co Ltd 2002 (139) ELT 125 (T-Kolkata). (ii). Indian Oil Corporation Ltd vs. CCE reported in 2011 (263) ELT 698 (Tri-Ahmd) (iii). SPIC Ltd Vs CC (Imports), Chennai, 2009 (237) ELT 94 (Tri- Chennai) (iv).SAIL Vs CC (Port), Kolkata, 2008 (230) ELT 647 (Tri- Kolkata) 3. Shri S.L. Hasija, Superintendent, Learned AR, reiterated the findings of original authority and submitted vide written submissions, inter alia, that during the hearing, the advocate for appellants submitted some copies of price declarations, sale invoices, depot invoices and CA Certificate; the said documents only proves that the goods have be....
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....rgin has been changed in all the years though prices were constant. In view of the same, it is proved that the incidence of duty has already been passed on. He also relied upon the decision of Hon'ble Supreme Court in the case of Union of India Vs Solar Pesticide P Ltd (reported in 2000 (116) ELT 401 (SC). He further submits that in the present case the appellants have made a remark, Balance sheet for the year 1992-93 in Schedule X, that there are some excise refund claims by the company but not accepted by the Central Excise Authorities; the company has preferred appeals with Central Excise Appellate Authorities/Bombay High Court/Supreme Court of India; in view of uncertainty of the claims, refunds will be accounted for on final decision by the authorities/courts. It is clear that they have booked the amount as expenditure and not carried forward the same claims as receivables in the subsequent years. Hon'ble Tribunal Mumbai, in the case of Hindustan Petroleum Corp Vs. CC (I) Mumbai (reported in 2015 (328) ELT 490 (Tri-Mumbai), held that 5.4. The next aspect to be considered is whether the refund claim is hit by the bar of unjust enrichment. The Revenue has referred to the case ....
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.... that even after submitting the 7 sample invoices and cost accountant certificate, the lower authorities have either ignored the same or have misread the certificates or invoices. 4.1. On perusal of the said invoices we find that the same may not be of any help in advocating the cause of the appellants. Per contra we find that Ld. Commissioner (Appeals) has gone through the invoices and given a specific finding as follows: '... The appellants had submitted 7 (seven) Excise and commercial invoices before the Assistant Commissioner. Excise Invoice no. 248 dated 28.04.1995 shows the assessable value of variety 'Sapphire 210x330' as Rs. 56.24 per unit, and total assessable value as Rs. 89,984/- and duty paid @20% as Rs. 17,997/-. The price declaration shows the selling price as Rs, 74/- per box; abatement @8.8029 as Rs. 6.51; Excise duty @20% as Rs. 11.25. The sale invoice dated 29.04.1995 from the Coimbatore Depot shows the sale price as Rs. 74/- per box. The said invoice does not indicate the amount of duty paid separately as required under Section 12A of the Act. The presumption of law contained in Section 12B of the Act is that the entire duty of Rs. 11.25 per box on the said va....
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.... price, rate of excise duty, rate of discount, discount value, rate of PME, amount PME, assessable value, duty amount, cost of production, cost with excise, margin and percentage of margin to sales price. Ongoing through the certificates per se reveals that the profit margin has been varying over the years irrespective of the fact that the duty has come down over the years for different products; in respect of some products the pre-budget and post-budget value was constant and for some it was changing depending on the rate of duty. We find that it cannot be inferred from the said certificates that the burden of incidence of duty has been borne by the appellants and has not been passed on to the customer. 4.3. Ld. Counsel for the appellants has relied upon various case laws. We find that the facts of the cases referred therein are not identical to the facts of the case before us. In most of the cases, the issue was relating to sale of goods as per London Metal Exchange prices or as per Administered Prices Mechanism, where the appellants had no control on the prices and as such, the proof of passing on the incidence of duty was irrelevant. Per contra we find that the case law cited ....