TaxTMI 
TaxTMI 
2005 (7) TMI 160
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.... in classification. 2.1 The claim of refund was rejected by the Dy. Commissioner on the findings. - I have carefully gone through the case records, grounds of refund claim and submission made by the assessee during the personal hearing. I do not find merit in the submission made by the assessee that they have not changed the price structure despite the fact that price structure was changed by them as evident from the invoices issued prior to change of duty structure and post change of duty structure. It is beyond any dispute that in invoices they have shown duty separately and duty was charged accordingly, which inter alia makes well evident that the incidence of duty paid as excise duty has been passed on to the customer and it is not refundable to the assessee. The concept of passing on of the incidence of duty squarely arise in this case as burden of duty paid on final products were directly passed on to the buyer which gives ample space for application of the bar of unjust enrichment. The relied upon case laws are also not relevant in the present case. This is a fact that the assessee recovered the Central Excise Duties as mentioned in the invoices raised by the assessee ....
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....he appellants while claiming the refund of Rs. 2,55,81,066/- on 13-8-2001 included the amount of duty paid on charity/dharmada amount. However, there is no mention in the Adjudicating order in this regard. However, I find from the records submitted by the appellants that the appellants have paid Central Excise duty amounting to Rs. 5,79,125/- on charity/dharmada amount vide PLA Entry No. 3/16, dated 23-5-2001 under protest. I further find whatever, duty is paid by making debit entry in PLA, subsequent to date of clearance of the goods, presumption to the effect that the incidence of duty has been passed on to the buyers, will not be attracted. In the appellants case, I find that during the period from January, 2001 to February, 2001, the appellants have recovered/collected additional amount as charity/dharmada from their buyers and paid duty on the said amount on 25-5-2001. Moreover, I find that the SCN, dated 3-12-2002 issued for recovery of duty on charity amount collected during Jan. & Feb., 2001 was subsequently dropped by the Additional Authority vide OIO no Dem/42/2002, dated 28-2-2002. The Hon'ble CEGAT in case of Punjab Beverages Pvt. Ltd. v. Collector of Central Excise,....
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....(i) the appellants have submitted in detail the reasons for preferring a refund claim which was rejected by the Divisional Deputy Commissioner and subsequently the Commissioner (Appeal) has confirmed this action of the Deputy Commissioner. After the Hon'ble Supreme Court gave some opinion, that gutkha was tobacco, all the Central Excise offices in the country had considered this issue but the Vadodara Commissionerate went one step ahead by issuing directions to reclassify the goods and discharge duty accordingly. The Appellants had no alternative. They could not have stopped the manufacturing activities and at the same time they could not disobey the orders of the jurisdictional Deputy Commissioner, who had given directions without considering the practice/procedure followed at the factories of the same & other such manufacturers in other Jurisdictions. The Appellants have a very very few C&F Agents through whom goods are dispatched, to whom they informed about the action taken by the Central Excise Department and the obligations the appellants had to comply with. The Appellants informed them that the Excise duty liability would be discharged on the hi....
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....tion Manikchand Gutkha 2 gms Manikchand Gutkha 2 gms ii Invoice no. & date 1144/22-12-2000 1316/31-1-2001 iii no. of cases 100 cases 100 cases iv Assessable value Rs. 4,00,000/-(tariff value) Rs. 5,51,333/- v Basic price Rs. 6,72,000/- Rs. 5,51,333/- vi Total duty paid BED Rs. 64,000/- Rs. 88,213.28 SED Rs. 96,000/- Rs. 1,32,319.92 AED - Rs. 55,133.30 total Rs. 1,60,000/- Rs. 2,75,666.50 vii Charity - Rs. 5,000/- viii Total invoice price Rs. 8,32,000/- Rs. 8,32,000/- ix Price per case inclusive of taxes Rs. 8,320/- Rs. 8,320/- Sr. No. Particulars Duty liability discharged under Chapter 21 during December, 2000 Duty liability discharged under Chapter 24 during Jan. & Feb., 2001 II i Description Manikchand Gutkha 4 gms Manikchand Gutkha 4 gms ii Invoice no. & date 1126/19-12-2000 1210/5-1-2001 ....
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....ra it is mentioned that the reduced price structure can be due to.... etc. These are contradictions, unexplained, exhibly a mind but to somehow reject the claim. (v) The Appellant relies on the below mentioned case laws : The Tribunal in Collector v. Metro Tyres Ltd. - 1995 (80) E.L.T. 410 (T) had held "Assessee's invoice during the material period showing a composite price and duty not indicated separately-sales price of the goods before as well as after the event (reclassification) remained the same. Conclusion-incidence of higher duty not passed on to customers." The Central Excise Department had filed an appeal in the Hon'ble Supreme Court 2002 (143) E.L.T. A75 against this aforementioned Tribunal order. The Appeal has been dismissed by the Supreme Court by ordering, "what is involved is the Assessment of evidence as to whether or not the assessee had passed on the burden of excise duty to their customers". In the case of Appellant herein, also this is the evidence that the sale price of the goods before as well as after the reclassification remained the same. (vi) The Hon'ble Supreme C....