2003 (7) TMI 144

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....y was paid provisionally pending determination of the eligibility to deduction from the sales price claimed from the price list that the assessee has filed. By four orders passed between January and March 1997, the Asstt. Commissioner disallowed many of the items claimed for deduction. The assessees appealed this orders. The Commissioner (Appeals) passed orders either remanding in one case the matter to the Asstt. Commissioner for allowing the appeal. The Asstt. Commissioner passed common order in 1999 in which he allowed some of the deduction and disallowed some others. (It appears that the assessees have not questioned this element by the Asstt. Commissioner). On this the Jurisdictional Superintendent passed orders on March, 2000 ordering....

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....r however does not say that the price of the goods has remained the same. He says that since the invoice showed "composite price" the extent of duty had not been passed on. It is not possible to endorse this view. All invoices in fact would show the composite price i.e. the total price payable by the buyer although in terms of Rule 12A, the invoice are required to show separately the amount of duty which would form part of the price. Presumably what the Commissioner (Appeals) evidently meant is that this price has not been shown. This cannot by any means lead to the conclusion that incidence of duty had not been passed on and the Commissioner (Appeals) order therefore cannot be upheld. 4. Counsel for the appellant however takes before us v....

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.... the Court while dealing with this contention said that there was no doubt at any time said that there was no vested right to refund. It said as follows "Even without Section 12B, the true position is the same, as held by us in the earlier part of this judgment. The obligation to prove that duty has not been passed on to another person is always there as a pre-condition to claim of refund. It cannot also be said that by giving retrospective effect to Section 11B any vested rights or substantive rights are taken away. The deprivation if at all is not real. The manufacturer has also concluded that duty from his purchaser and thus reimbursed itself. By applying for refund yet he is trying to read a windfall. A deprivation of that cannot be sai....

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....CCE v. Christine Hoden (I) Pvt. Ltd. in Appeal E/1522/2000 [2003 (155) E.L.T. 271 (Tribunal)] considered this argument and not found it possible to accept. We had noted that the price charged to buyers composite of many elements which duty was only one. It is perfectly possible for the price charged to the buyer to remand the same to number of factories. The manufacturer for example, may reduce the manufacturing cost, and by using cheaper raw material or by streamlining the operation reduced the price. It is also possible he may sacrifice all or part of his profit. This last aspect has been examined in detail in Mafatlal Industries in paragraph 91 of the reported order. The Court had noted that ordinarily no manufacturer will sell his produ....