TaxTMI 
TaxTMI 
2005 (1) TMI 208
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....ot attracted to the case of the appellant for having not passed on the incidence of duty to the buyers, as there had been no change in the price of their goods at the time when they were not paying excise duty and thereafter when they started paying the duty under protest and that the reflection of duty element separately in the invoice was only to meet the requirement of law and not for charging the duty from the buyers. Therefore, the impugned order deserves to be set aside. 3. On the other hand, the learned SDR has reiterated the correctness of the impugned order and contended that the appellants having passed on the incidence of duty to the ultimate buyers, are not entitled to the refund of duty amount under the principle of unjust enr....
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....ice of the goods of the appellants before payment of duty and thereafter had remained the same during the period in dispute, but he has not disputed that in the invoices, the copies of which had been placed on record, the duty element has been separately shown by the appellants, besides the price. Even otherwise, we are unable to accept the contention of the Counsel that due to non-variation in the price, it should be presumed that the incidence of duty had not been passed on by the appellants to the buyers. The law on this point is now well settled in the light of the observations made by the Apex Court in this regard in Mafatlal Industries v. Union of India [1997 (89) E.L.T. 247] (para 91) as under : "Ordinarily, no manufacturer will sel....
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....s stable even after payment of duty by the assessee, would not lead to an irresistible conclusion that he himself had borne the duty burden and not passed on to the consumers. Therefore, simply because the appellants in the present case, did not bring any change in price, it is difficult to conclude that they had not passed on the duty to the consumers. It is hard to accept that they sold the goods at a lesser price or cost incurred by them in the manufacture of the same. Rather it can be reasonably inferred that they brought down their profit margin and kept the price stable in order to compete in the market for marketing their goods. No details as to what was the profit margin of the appellants before payment of duty by them and thereafte....
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....order. He had not disclosed as to what was the price agreed upon and how much was the duty element therein. When the duty element, as observed above, had been separately shown, besides the price, in the invoices, by the appellants, that itself is enough to make his affidavit meaningless. 9. The duty was no doubt paid by the appellants under protest but still they were under legal obligation to cross the bar of unjust enrichment by showing that they had not passed on the incidence of duty to the buyers, for claiming the refund, in view of the latest pronouncement by the Apex Court in the case of CC, Mumbai v. Allied Photographics India Ltd. [2004 (166) E.L.T. 3]. 10. Having failed to prove the non-passing of the incidence of duty to the bu....