2003 (11) TMI 160 - AT - Central Excise

Summary

Issues:
- Appeal against order of Commissioner (Appeals) allowing refund claims based on inclusion of galleries in the dimension of the chamber.
- Duty payment under protest and passing on the incidence of duty.
- Competency of Commissioner (Appeals) to decide constitutionality of levy.
- Procedure for paying duty under protest and challenging APC fixation order.
- Evidence presented before Commissioner (Appeals) and remand to Deputy Commissioner.
- Interpretation of invoices showing passing on of duty incidence.

Analysis:
1. The appeals were filed by the Revenue against the order of the Commissioner (Appeals) allowing refund claims based on the inclusion of galleries in the dimension of the chamber, which the Commissioner deemed unconstitutional. The Revenue contended that the Commissioner (Appeals) exceeded his authority by deciding the constitutionality of the levy, a power reserved for higher courts. The Revenue argued that an erroneous levy does not equate to an unconstitutional one, citing legal precedents. The Tribunal agreed, stating that the Commissioner's decision on the levy's constitutionality was incorrect.

2. The issue of duty payment under protest and passing on the incidence of duty arose during the proceedings. The respondents initially failed to prove that duty was paid under protest or that the duty incidence was not passed on to buyers. However, during the appeal, they presented evidence such as T.R. 6 challans and invoices to support their claims. The Tribunal noted that the evidence presented did not conclusively prove that the duty incidence was not passed on, as per established legal principles.

3. The competency of the Commissioner (Appeals) to determine the constitutionality of a levy was questioned by the Revenue. It was argued that such decisions fall within the jurisdiction of higher courts and not the Commissioner. The Tribunal upheld this argument, emphasizing that the Commissioner (Appeals) exceeded his authority in declaring the levy unconstitutional.

4. The procedure for paying duty under protest and challenging the APC fixation order was discussed. The respondents claimed duty was paid under protest but failed to follow the prescribed procedure for such cases. The Tribunal stated that the procedure for paying duty under protest was not followed, and the claim of paying duty under protest seemed dubious. Additionally, the Tribunal clarified that challenging the APC fixation order required following proper legal avenues, which the respondents did not pursue.

5. Evidence presented before the Commissioner (Appeals) and the request for remand to the Deputy Commissioner were considered. The Tribunal noted that the evidence presented during the appeal was not provided earlier to the Deputy Commissioner, raising doubts about its credibility. The Tribunal emphasized that the evidence should have been presented at the initial stage. The request for remand was rejected based on procedural non-compliance and lack of conclusive evidence.

6. The interpretation of invoices showing the passing on of duty incidence was analyzed. The Tribunal referenced legal precedents to determine that the invoices presented did not definitively prove that the duty incidence was not passed on to buyers. The Tribunal concluded that the evidence presented was insufficient to support the claim of non-passing of duty incidence.

7. In conclusion, the Tribunal set aside the order of the Commissioner (Appeals) and upheld the decision of the Deputy Commissioner, allowing the Revenue's appeals. The Tribunal found that the Commissioner (Appeals) had erred in declaring the levy unconstitutional and that the evidence presented was inadequate to support the respondents' claims. The appeals were allowed in favor of the Revenue.