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TMI Blog2006 (10) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... eard both sides. 3. The contention raised is that the appellant unit was selling its produce below cost of production and in such a case there is no passing on of Central Excise Duty. The appellant has also produced a certificate from the Chartered Accountant to confirm that during the relevant period (1991-92) the appellant had "sold the cement below the cost price". A certificate also shows that the appellant incurred a loss of over Rs. 3.6 crores during that period. The appellant has also produced a certificate dated 23-6-05 from Chartered Accountant certifying that during the financial year 1991-92, "the appellants have not passed on the burden of excise duty to their buyers and the same has been absorbed by M/s. CCI Ltd.". Ld. Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd manner as may be prescribed and the application shall be accompanied by such documentary evidence including the documents referred to in Section 12A, as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from or paid by him and the incidence of such duty had not been passed on by him to any other person. Thus the onus to establish that the incidence has not been passed on to any other person is on the appellant. In fact, copies of a few invoices submitted by the appellant shows that the amount charged is all inclusive meaning thereby that the Central Excise duty paid is also a part of the price charged from the Customer. In fact, the circular dated 1-3-92 iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these circumstances, the finding of the lower authorities that excise duty was being passed on to the buyer is factually sound. 6. That the manufactured goods were sold at a loss is not conclusive on the question of passing on of excise duty. Loss making sales can take place in respect of non-excisable goods also. For refund purposes, the only relevant fact is whether the tax paid was being collected from the buyers. Whether a sale price is a profitable price or a loss making price is altogether irrelevant for the purpose of refund. Viewed from this perspective, it is clear that the certificate of the Chartered Accountant does not satisfy the requirement. The legal submission that a State undertaking does not come within the scheme of unj ..... X X X X Extracts X X X X X X X X Extracts X X X X
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