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TMI Blog2010 (10) TMI 445X X X X Extracts X X X X X X X X Extracts X X X X ..... hed by cogent evidence, mere recording of the amount being recoverable in the account books that itself cannot be a proof of fact of non-collection of duty - Hence, the impuged order is held - Decided against of assessee. - E/524/2005 - 770/2010-EX(PB) - Dated:- 5-10-2010 - Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. REPRESENTED BY : S/Shri S.C. Kamra and G.K. Mahajan, Advocates, for the Appellant. Ms. Monica Batra, SDR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President]. - Heard at length the learned advocate for the appellants and the DR for the respondent. The appeal arises from order dated 28th October 2004 passed by the Commissioner (Appeals), Gwalior. By the impugned order, the appeal filed by the appellants against the order of the Assistant Commissioner dated 27th May 2004 has been rejected. By the said order dated 27th May 2004, the Assistant Commissioner, Gwalior had held that the claim of the appellants for refund of Rs. 32,65,057/- (Rupees Thirty Two Lakh Sixty Five Thousand and Fifty Seven) was sanctioned but the amount was ordered to be credited to the consumer welfare fund by applying the principle of unjust enrichme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would apparently disclose that the amount of excise duty was not recovered from the buyers and, therefore, it was refundable by the department. He fairly conceded that the certificates from the buyers were not placed before the original authority but the same were placed before the Commissioner (Appeals), who, however, did not take into consideration the same while deciding the matter. He, further submitted that the Adjudicating Authority erred in relying upon the decision of the Commissioner (Appeals) dated 12th December 2003 as the same was set aside by the Tribunal in the decision reported in 2006 (196) E.L.T. 68 (Tri.-Del.). 4. On the other hand, the departmental representative placing reliance in the decision in the matter of Gomathi Engineering Service v. Collector of C. Excise, Coimbatore reported in 1995 (79) E.L.T. 154 (Tribunal) and Hanil Era Textiles Ltd. v. CCE, Raigad reported in 2008 (225) E.L.T. 117 (Tri.-Mumbai) and taking us through the order passed by the Adjudicating Authority and the lower Appellate Authority submitted that the authorities below have duly considered the documents place on record and have disbelieved them on account of failure on the part of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the invoices was not collected by the appellants at a time of receipt of the price in relation to the product sold. It is their own case that the liability in relation to the amount payable to the appellants arising under such invoices is settled at the end of every month by verification thereof by the parties. Being so, it was all the more required for the appellants to produce necessary documentary evidence in relation to such verification which could reveal that at the time of verification and clearance of the dues of the appellants arising under invoices, such clearance was restricted to the amount excluding the excise duty element as revealed from the invoices. Undoubtedly, the appellants have not produced any such evidence either before the Adjudicating Authority or before the lower Appellate Authority nor anything in that regard has been produced alongwith appeal filed in the Tribunal. Entire thrust has been on the certificate stated to have been issued by the Chartered Accountant and so called certificates issued by the buyers to be read alongwith the balance sheet for the relevant year. 8. As regards the certificate of the Chartered Accountant the same reads thus :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that certain amount is outstanding and/or recoverable. Unless the preliminary requirement of proof regarding non-collection of the duty is established by cogent evidence, mere recording of the amount being recoverable in the account books that itself cannot be a proof of fact of non-collection of duty. 10. It was sought to be contended that the expression used by the Chartered Accountant while describing the amount being recoverable, the same also appears in the balance sheet for the relevant year. Indeed the balance sheet for the year ending on 31st of March 2003 in Schedule 6th under the title current assets refers to the entry called claims recoverable : the amount disclosed is Rs. 32,65,057/- . It cannot be disputed that the amount disclosed as recoverable in the balance sheet tallies with the figure disclosed in the certificate of the Chartered Accountant has been shown as recoverable. But as already stated above that itself cannot be a proof of non-collection of the duty by the appellants from their buyers. 11. As regards the so called certificates issued by the buyers, we fail to understand as to how the same can be stated to be relevant in any manner. First of all, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kerala Ltd. case the Chartered Accountant had given certificate certifying that the element of duty had not been passed on to the customers. Admittedly there is no such certificate issued by the Chartered Accountant in the appellants case. 14. In Polyglass Acrylic Mfg. Co. (P) Ltd. case, the Tribunal held that the appellants had produced evidence to show that the amount in question was reflected in the books of accounts as recoverable from the customers for the relevant year and it continued to be so and further Chartered Accountant had certified to the effect that the amount had not been passed on to the buyers . The certificate issued by the Chartered Accountant in the case of the appellants nowhere discloses any such information. Clearly, therefore, the decision in Polyglass Acrylic Mfg. Co. (P) Ltd. is distinguishable. 15. In Flow Tech Power case, the Hon ble Madras High Court held that there was a factual finding by the authorities below that the duty had been paid under protest and the question of time bar would not arise . It was further observed that the Chartered Accountant s certificate confirmed that the duty paid on the goods was absorbed by the assessee and had n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised by the appellants that they issued the credit note for the said amount to M/s. Modern Threads India Ltd. who had never paid the entire amount of duty to them; that the payment was not made by cheque as the same subsequently cancelled; that this is evident from the certificate dated 3-7-1999 given by M/s. Agrawal S. Lal Company, Chartered Accountant, and the Affidavit dated 3-7-1999 of Shri S.N. Tapodia, Vice-President of M/s. Modern Threads Ltd. Shri Tapadia has clearly mentioned that out of excise duty amounting to Rs. 14,32,376/- they had paid only Rs. 7 lakhs to the appellants and only Rs. 2,56,632/- is outstanding against them as on 30-6-1999. I, therefore, observe from these facts that the Customer has never paid the entire amount of duty to the appellants and accordingly it cannot be claimed the entire incidence of duty was passed on to customer. It was held by the Tribunal in Oswal Cotton Spg. Mills case that once the Respondents has rebutted the presumption that every person who has paid duty of excise on any goods shall be deemed to have passed on the full incidence of such duty to the buyers of such goods, the principle of unjust enrichment will not apply as the Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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