2009 (6) TMI 784 - AT - Central Excise

Summary

Issues:
Appeal against refund claim rejection by Revenue.

Analysis:
The case involved an appeal filed by the Revenue against the refund claim of the assessee, a sugar manufacturer, amounting to Rs. 5,27,736. The claim was based on the difference between the duty paid by the assessee and the amount received from the Food Corporation of India (FCI) for the sugar supplied under a release order. The Assistant Commissioner rejected the claim, but the Commissioner (Appeals) allowed it, leading to the Revenue's appeal.

The Commissioner (Appeals) noted that the entire quantity of sugar covered in the release order had been sold by the assessee to the FCI. The FCI paid duty at a lower rate than what the claimant had paid, resulting in excess payment by the assessee. The Commissioner (Appeals) found that the burden of the excess duty was borne by the claimant, as evidenced by a letter from the Assistant Manager (Sugar), Solapur.

The Tribunal examined the evidence presented. It was established that the assessee had borne the burden of the differential excise duty and had not passed it on to the buyers. In contrast, the Revenue failed to provide any positive evidence to show that the duty element was passed on to the buyers.

The assessee's billing practice was also scrutinized. It was revealed that the assessee presented bills to the FCI including quantities from different release orders, and payments were made accordingly by the FCI. The Tribunal emphasized that the difficulty in correlating payments received by the assessee should not be a reason to deny the legitimate claim.

Moreover, a letter from the FCI confirmed that the burden of the duty difference was borne by the factory and not passed on to anyone else. Given that the FCI is a Government of India Undertaking, the Tribunal deemed the letter as acceptable in the absence of contrary evidence.

Ultimately, the Tribunal upheld the Commissioner (Appeals)'s order, sustaining the refund claim of the assessee and dismissing the Revenue's appeal. Cross-objections were also disposed of accordingly.