2006 (12) TMI 409 - AT - Central Excise

Summary

Issues:
Challenge to order directing refund to consumer welfare fund based on Section 12B presumption.

Analysis:
The appellant contested the order directing refund to the consumer welfare fund, arguing that Section 12B presumption doesn't apply when duty is paid post-clearance. Citing Plas Pack Industries case, appellant claimed they paid excess duty due to miscalculated cash discount deductions. However, this argument wasn't raised earlier. The department's representative supported the lower authorities' findings that duty incidence was passed on to buyers, justifying the refund to the fund.

Under Section 12B, duty payers are presumed to pass on duty to buyers unless proven otherwise. A Division Bench decision in Gujarat State Fertilizers case held this presumption inapplicable if duty is paid post-clearance, following Gwalior Oil Mills precedent. The Tribunal also referenced Plas Pack Industries and Easter Industries cases, reinforcing that duty incidence passing on presumption doesn't apply post-clearance.

Apart from Section 12B, Section 11B mandates proof that duty incidence wasn't passed on for refund eligibility. Even if Section 12B presumption doesn't apply, Section 11B's requirement to prove non-passing of duty incidence remains. Considering Easter Industries and Gwalior Oil Mills decisions, the Commissioner's order applying Section 12B presumption was overturned. The matter was remanded for fresh examination under Section 11B without Section 12B presumption.

In conclusion, the appeal succeeded in setting aside the order, requiring a fresh assessment without Section 12B presumption, focusing on Section 11B's criteria. The adjudicating authority was tasked with reevaluating whether duty incidence was passed on without relying on Section 12B presumption, as per the Tribunal's observations.

Judgment:
The appeal was allowed by way of remand, with the order set aside for reassessment without the Section 12B presumption, emphasizing compliance with Section 11B for refund eligibility.