2003 (1) TMI 175 - AT - Central Excise

Summary

Issues involved: Appeal against the order of the Assistant Commissioner regarding refund of duty paid by the assessees, challenge by the Commissioner on the grounds of duty incidence not being passed on to the buyer as required by Section 11B(2).

Summary:
The appeal was filed by two companies against the Assistant Commissioner's decision to reject their claim for refund, stating that the duty paid was not passed on to the buyer as required by Section 11B(2). The Commissioner (Appeals) accepted the submission that the price of the goods remained the same even when duty was not payable, indicating that the duty incidence had not been passed on. The Commissioner challenged this decision, arguing that various elements form part of the price, including excise duty and profit margin. The manufacturer may adjust prices based on market conditions and competition, potentially absorbing the duty burden themselves. The burden of proving that duty incidence was not passed on lies with the claimant, as per Section 11B(2).

The respondent's counsel cited Tribunal decisions to support their argument, but the Tribunal found these decisions did not address the specific issue at hand. The respondent failed to provide evidence to rebut the claim, leading to the Tribunal's decision to set aside the Commissioner (Appeals) order. It was noted that the appeal should be restricted to one of the two orders passed by the Commissioner (Appeals), leading to the appeal being allowed and the order set aside.