2006 (11) TMI 54 - AT - Central Excise

Refund Unjust Enrichment Alleged that assessee has passed on the elements of duty to the buyer After considering all the evidence decided that revenue contention is not correct

Summary

Issues:
- Appeal against Order-in-Appeal accepting assessee's contention on duty elements not passed on
- Burden of proof on assessee regarding passing on duty incidence

Analysis:
The appeal before the Appellate Tribunal CESTAT, Bangalore stemmed from the Order-in-Appeal where the Commissioner (Appeals) accepted the assessee's argument that they did not pass on the duty elements to the buyers. The Revenue, feeling aggrieved by this decision, brought the matter to the Tribunal. The Commissioner noted the production of a certificate by the appellants from a Chartered Accountant detailing the product's costing. This certificate revealed that the product's cost, inclusive of profit, was Rs. 9.85, excluding Central Excise duty. It was observed that any additional amount paid by the buyers would directly impact the appellants' profit margin. Furthermore, a certificate from the recipient, a government enterprise, confirmed no Central excise duty payment. Consequently, the Commissioner concluded that the duty incidence was not transferred to the buyers.

During the hearing, the learned Jt. CDR argued that the assessee failed to meet their burden of proof. However, upon thorough examination, the Tribunal found that the Commissioner (Appeals) appropriately relied on the Chartered Accountant's certificate and the recipient's certificate from the Government of Andhra Pradesh. The Tribunal determined that the assessee successfully discharged their burden by presenting this evidence, demonstrating that the duty incidence was not shifted to the consumers. Consequently, the Tribunal dismissed the Revenue's appeal, finding no merit in their arguments. The appeal was rejected, affirming the decision of the Commissioner (Appeals).

In conclusion, the Tribunal's decision highlighted the importance of evidence in establishing the non-passing of duty incidence to buyers. By relying on the certificates provided by the appellants and the recipient, the Tribunal upheld the lower authority's decision and rejected the Revenue's appeal, emphasizing the significance of meeting the burden of proof in such cases.