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TMI Blog2011 (1) TMI 741X X X X Extracts X X X X X X X X Extracts X X X X ..... 04 subject to the condition that a certificate to the effect that the goods are intended for use specified therein from the Collector of District Magistrate / Commissioner be produced. They could not produce such certificate at the time of clearance of the goods to the Central Excise authorities and therefore, after obtaining the certificate they claimed refund of the duty already paid. The refund claim was rejected by the lower adjudicating authority on the ground of unjust enrichment. Aggrieved by the order of the adjudicating authority the appellant filed an appeal before the Commissioner (Appeals) who vide his order dated 27/02/2008 upheld the order of the lower authority. Aggrieved by the order of the Commissioner (Appeals) the appellant filed an appeal before this Tribunal. This Tribunal vide order dated 24/06/2009 remanded the case to the Commissioner (Appeals) for the limited extend of verifying the Chartered Accountant's certificate. The learned Commissioner (Appeals) again upheld the lower adjudicating authority's order. Hence the present appeal of the appellant. 4. The contention of the appellant is that the case was remanded for the limited extent to verify ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e buyers of the goods. The learned SDR further relies on the decisions of the Tribunal in the case of Commissioner of Central Excise, Pune - II vs. Super Craft Foundry 2009 (247) 673; Paper Products Ltd. vs. Commissioner of Customs (Import), Mumbai-I 2009 (233) ELT 227 and Corning S.A. vs. Commissioner of Central Excise, New Delhi 2005 (192) ELT 355. 6. In their rejoinder, the learned counsel submitted that all the case laws cited by the learned SDR relates to the manufacturer of goods directly and in their case they are neither manufacturer nor utilising the goods in captive consumption. The appellant themselves borne the duty burden and the duty burden has not been passed on to the project authorities. Therefore, the case laws relied upon by the department are not relevant to the facts of the case. 7. I have considered the submissions and perused the records. It is the second round of litigation. In the earlier round of litigation this Tribunal had remanded the case only for the limited extent of verifying the Chartered Accountant's certificate, which is abundantly clear from para 4 of the Tribunal's order dated 24/06/2009 which reads as under: "4. Following the ratio of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal judgements. The Tribunal have laid down the general principle that the question of whether the incidence of duty is passed on or not to the consumer would have to be evaluated on the basis of the accounting treatment accorded to the excise duty payment in the books of accounts of the company. Specifically, the Tribunal in the case of Rajasthan Spg. & Wvg, Mills Ltd. had opined that if the duty is shown as expenses and debited to the Profit & Loss Account, the same would have to be treated as having been passed on to the consumer. This view was also reiterated by the Hon'ble Tribunal in the case of Inn-Venue Hospitality Management Pvt. Ltd. vs. CCE, Pune III reported in 2008 (225) ELT 500 (Tri.Mumbai). The extracts of the judgement are reproduced below: "In the case of Rajasthan Spinning and Weaving Mills reported in 2006(194)ELT254, the Tribunal has held that booking of the duty in the profit and loss account would establish that the duty burden has been passed on to the buyers." 11. On the issue of examination of the CA certificate, Hon'ble Tribunal in the case of Kirloskar Oil Engines Ltd. vs. CCE, Mumbai (reported in 2004 (174) ELT 54 (Tri.Mumbai)) had clearly h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certify that IVRCL Infrastructure & Products Ltd., has claimed only agreed materials value as per the Contract with Thirupur Industrial Waste Water Recycling Company Ltd., and Central Excise has not been collected from Thirupur Industrial Waste Water Recycling Company Ltd." 7.3 The appellant have also produced a certificate dated 19/06/2009 issued by Tirupur Industrial Wastewater Recycling Company Limited, which reads as under: "TO WHOMSOEVER IT MAY CONCERN Sub: No objection for claiming refund by M/s IVRCL Infrastructure & Projects Limited (IVRCL) As per Notification No.3/2004 Central Excise, dated 8th January 2004, all items of machinery, including instruments, apparatus and appliances, auxiliary equipments and their components/parts required for setting up of water supply plants and pipes needed for delivery of water from its source to the plant and from there to the storage facility is exempt from the excise duty. This exemption is subject to the condition that a certificate is obtained from the jurisdictional District Collector to the effect that such goods are procured for the intended use. In terms of this notification, we have obtained the necessary certificate from th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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