9911796707
TMI Blog1997 (12) TMI 334X X X X Extracts X X X X X X X X Extracts X X X X ..... by he upheld the finding of the Assistant Collector of Central Excise. The Assistant Collector of Central Excise held that it is established beyond doubt that appellant has actually collected the Central Excise duty from the buyers and had thus passed on the incidence of duty from their own shoulders to the buyers and no refund accrue on them on this count as per unjust enrichment clause under the provisions of Section 12B of the Central Excises and Salt Act, 1944. The Assistant Collector sanctioned the refund and ordered that the amount be credited to the consumer welfare fund under Section 11B(2) and 12C of the Central Excises and Salt Act, 1944. 2. Ld. Counsel appearing on behalf of the appellant submits that respondents has wrongly he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heet shows that duty has been paid from the income. Therefore it means that they have collected the duty from the sale of goods. He therefore, prays that the appeals be dismissed. 4. Heard both sides. The only short question involved in this appeal is whether the burden of duty has been passed on to the buyers or not. The adjudicating authority in the order-in-original held that in gate passes in the instance case indicate the amount of Central Excise duty paid by the party and the invoice indicate the total price inclusive of all taxes. The appellants were not bound by the Central Excise law to indicate the duty element separately on invoice since the statutory Central Excise document was mentioned in the gate pass. It was a practice to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his goods at less than its proper price. The suggestion is that the manufacturer may have to forego not only his profit but also part of excise duty and that in such a case levy and collection of full excise duty would cease to be a duty of excise; it will become a tax on income or on business. We are unable to appreciate this argument. Ordinarily, no manufacturer will sell his products at less than the cost-price plus duty. He cannot survive in business if he does so. Only in case of distress sales, such a thing is understandable but distress sales are not a normal feature and cannot, therefore, constitute a basis for judging the validity or reasonableness of a provision. Similarly, no one will ordinarily pass on less excise duty than what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have passed on the full incidence of such duty to the buyer of such goods. Since the presumption created by Section 12B is a rebuttable presumption of law - and not a conclusive presumption - there is no basis for impugning its validity on the ground of procedural unreasonableness or otherwise. This presumption is consistent with the general pattern of commercial life. It indeed gives effect to the very essence of an indirect tax like the excise duty/customs duty. In this connection, it is repeatedly pointed out by the learned Counsel for the petitioners-appellants that the levy of duty is upon the manufacturer/assessee and that he cannot disclaim his liability on the ground that he has not passed on the duty. This is undoubtedly true bu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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