TaxTMI 
TaxTMI 
2019 (9) TMI 1544
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....ed in manufacturing of heavy commercial vehicles and chassis of vehicles falling under Chapters 8704 and 8706 respectively, of the First Schedule to the Central Excise Tariff Act, 1985. During the dispute period, 2008 to 2011, the appellant cleared 86 Nos. of vehicles to EPCG licence holders, on the basis of invalidation letters issued in terms of Foreign Trade Policy (FTP) 2009-2014, According to para 8.2.3 of the said policy, a certificate from EPCG authorisation holder, evidencing receipt of capital goods was also submitted to the excise authorities. Clearance of the vehicles under FTP without payment of duty was objected to by the Department on the ground that the supplies were not effected against International Competitive Bidding (ICB....
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....hat amount deposited towards duty and interest, was booked under the head of Miscellaneous Expenses and accordingly shown in the Balance Sheet for the FY 2011-2012, to show that duty incidence was borne by the Appellant itself. (iii) Copies of invoices which clearly state that the goods were cleared under ARE-3 Form and that the duty payable was 'Nil'. (iv) Copies of customers' ledgers, along with Affidavits from some of the buyers confirming that only the amounts shown in the invoices were paid to the appellant and nothing extra/additional amount was paid or charged from them." 5. As submitted earlier, goods were cleared by the appellant without payment of duty during the period of dispute ....
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....l relies on the ruling of the Larger Bench decision of this Tribunal in Advance Steel Tubes Ltd. - 2014 (310) E.L.T. 370, whereby it was held that the principles of unjust enrichment would not be applicable in cases, where the duty is paid during the course of investigation, subsequent to clearance of goods. The presumption under Section 12B applies only in respect of excise duty paid on any goods cleared on an invoice. It was held that when duty is not charged in the invoice, the burden shifts on the Department to prove that the duty has been recovered from the buyer. The ruling in the case of Advance Steel Tubes (supra) was upheld by the Hon'ble Allahabad High Court reported in 2018 (11) G.S.T.L. 341 (Allahabad). Reliance is also placed o....
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.... which show that in the duty column, it is mentioned that the duty is not applicable as goods are cleared under EPCG licence specifying the licence no. and date along with other details. The appellant has also produced the extract of their buyers in support of their contention that they have not collected any amount of duty, which was also supported by the Affidavit of some of the buyers as well as other corroborative evidences on record. Thus, the appellant has discharged its onus to prove that they have not passed on the incidence of duty to the buyers of the goods. Thus, there can be no presumption of passing of duty to attract the doctrine of unjust enrichment. 12. Ld. Counsel further urges that the Adjudicating Authority has ob....
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....sheet, no adverse inference can be drawn. Ld. Counsel also refers to Accounting Standard-9 (AS-9), which deals with Revenue recognition. AS-9 provides that excise duty should not form part of the total turnover and should be shown by way of deduction from the turnover in the P & L Account. 15. Ld. Counsel further relies on the ruling of the Hon'ble Bombay High Court in the case of CCE v. Sandvik Asia Ltd. - 2015 (323) E.L.T. 431 (Bombay) and also on the ruling of the Hon'ble Delhi High Court in the case of YU Televentures Pvt. Ltd. v. Union of India - 2017 (358) E.L.T. 81 (Delhi), wherein it has been held that the amount of duty shown as the expenditure in the balance sheet or P & L Account, cannot prove unjust enrichment and accord....