2005 (2) TMI 362

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.... effect from 1-3-2000 the duty structure changed to 16% BED and 16% SED vide Notification No. 6/2000 dated 1-3-2000. In respect of clearances to OE manufacturer, remission of SED was available on condition that the appellants follow Chapter X Procedure. In order to avail the Chapter X facility, the appellants applied immediately after the Budget 2000. However, the department took nearly one year for issue of CT-2 Certificate. Therefore the appellant was procuring Tyres for the period from 1-3-2000 to 31-1-2001 by paying all duties including the SED. The total SED paid by the appellant works out to Rs. 60,77,117/-. The CT-2 certificate was obtained in the month of January 2001, therefore the appellants filed a refund claim with the Original ....

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....burden has not been passed on. She cited the following decisions. 1.       CCE, Mumbai-II v. Allied Photographics India Ltd. - 2004 (166) E.L.T. 3 (S.C.). 2.       Union of India v. Solar Pesticides Pvt. Ltd. - 2000 (116) E.L.T. 401 (S.C.). 3.       JCT Ltd. v. CCE, Chandigarh-III - 2004 (163) E.L.T. 467 (Tri. - Del.). 4.       CCE, Nagpur v. Maharashtra  Cylinder - 2003  (157)  E.L.T.  688  (Tri. - Mum.) wherein it is held that the CA Certificate by itself is not sufficient to show that the duty burden is not passed on to the customers. She further urged that the law makes a presump....

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....ficient to cover the duty incidence on the inputs. In this case also we can say that the manufacturer could at least make a small profit which is only sufficient to cover the excise duty paid on the inputs. He doesn't get anything for himself after paying the excise duty on the inputs. Let us take the third example where the selling price is Rs. 60/-. In this example the manufacturer incurs a loss of Rs. 60/-. The excise duty on inputs alone is Rs. 20/-. That means he could not recover not only the input duty from the buyer but also other elements of cost. These examples are given only to show that the cost price, selling price and profit/loss are very relevant factors in deciding whether duty of excise has been passed on or not. It is not ....

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....sp;   Loss     (74,031)     75,031 8. A perusal of the above certificate shows that Cenvat Credit on the inputs is not included while costing the product. Secondly, all elements of cost prior to 1-3-2000 and after 1-3-2000 remain the same excepting that of tyres and tubes. In the case of tyres and tubes, the net cost prior to 1-3-2000 is Rs. 6,250/- and Rs. 7,250/- after 1-3-2000. This variation is on account of the change in the duty structure. The selling price for both the periods is Rs. 2,99,046/-. The loss in the first period is Rs. 74,031/- and after 1-3-2000 it is Rs. 75,031/- in respect of each vehicle. 9. When we see the magnitude of loss and the duty incidence on tyres and tub....