2004 (11) TMI 12 - AT - Central Excise

Refund - Revenue s contention is that the refund is required to be passed on to the ultimate consumer and not to the dealer Revenue s only grievance is that the assessee is required to establish about the passing of the incidence of duty to the ultimate consumers in view of another case, held that assessee is not required to establish that the incidence of duty is not passed on to the ultimate buyers order of commissioner of sanctioning refund is based on evidences so it is justified

Summary

Issues: Revenue's appeal against the order accepting refund eligibility and passing on the incidence of duty to ultimate consumers.

In this judgment by the Appellate Tribunal CESTAT, Bangalore, the Revenue appealed against the Order-in-Appeal (OIA) accepting the assessee's plea for refund eligibility and not passing on the duty incidence to their customers. The Revenue contended that the refund should be passed on to the ultimate consumer, not the dealer, citing a Madras High Court judgment and a pending Special Leave Petition before the Apex Court. The Revenue argued that the burden of proof lies with the assessee to show that the duty incidence was not passed on to the ultimate consumer. However, the Tribunal noted previous cases where evidence showed duty incidence passed on to consumers. The Commissioner (Appeals) examined records and evidence, concluding that the assessee did not pass on the duty incidence to the dealers. The Counsel argued that the assessee is not required to establish non-passing of duty incidence to ultimate consumers as per the C.E. Act, 1944, and cited the Madras High Court judgment in Addison & Co. v. CCE. The Tribunal found no merit in the Revenue's appeal, as previous judgments supported the view that passing on duty incidence to consumers was not mandatory.

The Tribunal's analysis focused on the Revenue's challenge against the Commissioner (Appeals) decision regarding refund eligibility and duty incidence passing. The Revenue's argument, based on a Madras High Court judgment and a pending Special Leave Petition, emphasized the burden of proof on the assessee to show non-passing of duty incidence to ultimate consumers. However, the Tribunal referenced previous cases where evidence indicated duty incidence was indeed passed on to consumers. The Commissioner (Appeals) had thoroughly examined the evidence and records, concluding that the duty incidence was not passed on to the dealers, which the Counsel supported by citing relevant legal provisions and precedents. Ultimately, the Tribunal rejected the Revenue's appeal, highlighting that previous judgments aligned with the view that demonstrating duty incidence passing to consumers was not obligatory, thus upholding the Commissioner (Appeals) decision.