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TMI Blog2010 (4) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... clearances © 20% ad valorem under protest. They also challenged the Assistant Commissioner's order before the Commissioner of Central Excise (Appeals) but unsuccessfully. Ultimately, they succeeded before this Tribunal in their appeal filed against the order of the Commissioner (Appeals). This Tribunal, by order dated 9-11-1995, held the assessee to be eligible for the benefit of the above Notification. Subsequently, the party filed six refund claims for an aggregate amount of Rs. 20,08,64,189/- being the differential duty paid by them for the period from 28-2-1993 to 31-12-1995. The following are the essential particulars of these refund claims: S. No. Amount Filed on Period 1. 1,75,95,393.00 17-1-96 1-8-93 12-5-93 2. 17,45,42,335.00 8-4-96 13-5-93 31-12-95 3. 21,98,104.00 26-4-96 28-2-93 31-8-93 4. 18,47,079.00 30-4-96 28-2-93 25-8-93 5. 23,88,558.00 30-4-96 1-9-93 1-6-94 6. 72,98,720.00 30-4-96 26-8-93 18-8-95 2. In a show-cause notice dated 4-3-1996k the department proposed to reject the refund claim dated 17-1-1996 as time-barred. In a subsequent show- cause notice dated 23-8-1996, all the six refund claims were proposed to be rejected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. The Chartered Accountant of the appellants also certified that the differential duty amounts had not been recovered from the customers by raising debit notes. The differential duty was paid after clearance of the goods. In these circumstances, according to the learned Counsel, the appellant had successfully rebutted the statutory presumption (under Section 12B of the Central Excise Act) that the incidence of duty had been passed on to the buyers of the goods. In support of the reliance placed on the Chartered Accountant's certificate, the learned Counsel relied on Commissioner v. Flow Tech Power - 2006 (202) E.L.T. 404 (Mad.) and also on order dated 17-7-2008 of the Bombay High Court in Civil Appeal No. 183 of 2007. Reliance was also placed on Transformers & Electricals Kerala Ltd. v. Commissioner - 2005 (188) E.L.T. 60 (Tri. -Bang.). The learned Counsel submitted that the invoices issued by the appellants showed a composite price without separately indicating duty amount and that the price remained the same irrespective of the rate of duty. On these facts, the appellants should be held to have discharged their burden of proof that the incidence of duty had not been passed on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, the entire amount of duty should be deemed to have been recovered from the customers. Admittedly the price at which the goods were sold by the appellants at all material times was an all-inclusive price. In other words, the selling price of the goods, admittedly, was cum-duty price. As this fact was admitted by the assessee, according to the JCDR, there could be no rebuttal of the presumption under Section 12B of the Central Excise Act. He also referred to Section 12A- of the Act and submitted that it was obligatory for the appellants to show the amounts of duty separately in their GPIs/invoices. Their failure to do so was fatal to their refund claims. Copies of certain specimen invoices were also produced by the learned JCDR, which were issued to the appellants by M/s. AS Electronic Corporation in the month of April 1994 and indicated the duty amount separately at the rate of 20%. Copies of returns filed by the appellants for the month of September, 1994 were also produced by the JCDR, which indicated payment of duty @ 20%. Referring to the contention of the learned Counsel that, as the price of the goods had remained the same at all material times irrespective of the rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned the claims but ordered the amounts to be credited to the Consumer Welfare Fund on the ground that the incidence of duty had been passed on by the assessee to their customers. Therefore, the issue before us is whether the three refund claims in question are barred by unjust enrichment. 8. The learned Counsel has argued that the reasoning behind the grant of refund of Rs. 1,66,34,576/- is equally applicable to the refund claims in question. The assessee's claim for refund of duty of Rs. 1,25,95,393/- for the period 1-8-93 - 12-5-93. Rs. 21,98,104/- for the period 28-2-93 - 31-8-93 and R 18,42,079/- for the period 28-2-93 - 25-8-93 totalling to Rs. 1,66,34,576/- was held to be not hit by the bar of unjust enrichment inasmuch as the relevant GPIs/invoices were found to have been raised by the claimant charging duty @ 10% and the differential duty @ 20 - 10 = 10% was found to have been paid subsequently (i.e. after clearance of the goods) through TR6 Challans/PLA debits. In this connection, the adjudicating authority observed that the incidence of the differential duty paid by the assessee had not been passed on to any other person and, further, that the 'List Price' of the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the period from 13-5-93 to 31-12-95". In the separate sheet enclosed with the above refund claim, the assessee has averred, inter alia, as under: " the duty liability was determined @20% adv. as per Sr. No. 10(b) of the above said notification. Thereafter we started paying duty on these products @20% adv. under protest vide our letter No. ILB-14/400 dated 14-5- 93 Since we have paid duty @20% adv under protest on the clearance of these products during the period 13-5-93 to 31-12-95, we are now filing the refund claim amounting to Rs. 17,45,42,335/- for the excess duty paid by us". In the second claim for Rs. 23,88,558.95 in FORM 'R', the assessee made a similar statement as under: "The amount claimed was originally paid through GPIs/invoices issued during the period 1-9-93 to 1-6-94 The amount claimed was debited to account current No. PM 1378/85/92 & RG23AP II against GPI No./Invoices issued during 1-9-93 to 1-6-94". In the remaining claim for Rs. 72,98,720/- in FORM 'R', the assessee again made similar statement as under: "The amount claimed was originally paid through GPs/Invoices issued during the period from 26-8-93 to 31-i -96 The amount claimed was debited accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds to the stockists for the period post-1-3-1993. These selling prices continued to remain the same even after 13-5-1993 when our clients cleared the goods on payment of higher duty at the rate of 20% ad valorem. This position also holds good for M/s A.S. Electronics Corporation and M/s. Poonitronics from whom our clients purchased the goods." Their customers, to whom the goods manufactured by M/s. A.S. Electronics Corporation and M/s. Poonitronics (India) Pvt. Ltd. were supplied, cleared the goods on payment of higher duty'@ 20% adv post-13-5-1993. The assessee also clearly stated in their reply to the show-cause notice that the selling price of their clients was also "cum-duty" price or "all-inclusive" price. It is thus abundantly clear that the incidence of the differential duty claimed as refund for the material period had been passed on to the assessee's customers. 11. Another ground raised by the appellant to get over the bar of unjust enrichment is that the price of the goods remained the same. We have already held, with reference to binding judicial authorities, that the uniformity of price before and after assessment is by itself not a ground for holding that the duty bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for the period from 13-5-93 and that the amount had not been recovered from their customers. It was further certified that the amount had been shown as expenses in the Profit & Loss account for the aforesaid period whereas it is contended by the assessee that they collected cum-duty prices from their customers and that the prices at which the customers sold the goods were also cum-duty prices. The C.A.'s certificate of non- recovery of duty by the assessee from their customers loses its probative value (if any) in the face of the above contention of the assessee. The above refund claim was filed by the appellant as manufacturer of the goods. Therefore, if the amount was shown as expenses in their Profit & Loss account for the relevant period, as certified by the C.A., it must have been factored into the price of the goods manufactured by them - which situation would fit well in the contention that the goods were sold at cum-duty prices by the assessee and their customers -and consequently the burden of duty would be deemed to have been passed on to the buyers of the goods. As already found, the appellant has failed to rebut this presumption. 14. In the result, we hold that appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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