9911796707
TMI Blog2011 (2) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... amount, they are also eligible for the interest, after 90 days from filing of the refund claim, till the date it is settled, in accordance with law. - E/2203/2010 - 77/2011 - Dated:- 7-2-2011 - M. V. RAVINDRAN (JUDICIAL MEMBER) AND P. (TECHNICAL MEMBER ) Shri D. P. Nagendra Kumar, JCDR for the revenue. Shri K. Parameshwaran, Advocate for the respondent. Per Shri M. V. Ravindran This appeal is filed by the revenue against Order-in-Appeal No.43/2010 (G) CE dated 6.8.2010. 2. The relevant fact that arise for consideration is that the respondent-assessee herein had filed the refund claim of the duty paid under protest during the period 25.7.1997 to 10.5.2004. The refund claim was filed by the assessee on the ground that they had paid duty under protest , consequent to the judgment of the Hon'ble Supreme Court in the assessee's own case in Civil Appeal No.1453/2007 dated 19.3.2007 as reported at 2007 (210) ELT 171 (SC). The said refund claim was verified and a show cause notice dated 5.8.2008 was issued to the respondent-assessee directing them to show cause as to why the said refund claim be not rejected. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise duty separately to the customers in the copies of the gate passes and invoices filed by them and the customer has paid this amount to the respondent-assessee as duty of excise, hence, it cannot be said that incidence of duty is borne by the assessee . It is his submission that the said order of the Tribunal was affirmed by the Supreme Court as reported at 2002 (142) ELT A173 (SC). It is his submission that the decision of the Constitution Bench of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. - 1997 (89) ELT 247 (SC) and more specifically in para 91 would apply in this case. It is his submission that the Hon'ble Supreme Court in the case of Allied Photographics India Ltd. - 2004 (166) ELT 3 (SC) had held that the stability of price is not proof that the incidence of duty of excise has not been passed on to the customers. He would submit that based upon this judgment, there are series of judgments of this Tribunal holding the same view. It is his submission that in the case of Rajasthan Spinning and Weaving Mills Ltd. - 2006 (194) ELT 254 (Tri.-Del.), the Tribunal has held that by debiting of an expenditure to Profit and Loss Account and appropr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be read harmoniously with Section 12B which stipulates that any person who is claiming the refund has to rebut the provisions of unjust enrichment. It is his submission that all judgments which have been relied upon by the learned JCDR are on a different set of facts wherein the invoices indicated a cum-duty price. He would submit that in the instant case, the invoices were issued as per the provisions of the statute, but evidence was led to indicate that the duty which has been shown on the invoices was not collected by the respondent-assessee. It is his submission that the Chartered Accountant's certificate which was produced before both the lower authorities is not disputed by both the lower authorities by leading any contrary evidence. He would submit that the reliance placed by the JCDR in the case of Allied Photographics India Ltd. (supra), wherein there is a factual findings recorded in that case and analyzed in detail by the Supreme Court. It is his submission that in the assessee's own case in an identical set of facts of allowing refund claim was challenged before this bench as reported at 2007 (219) ELT 682 on the very same grounds which are taken today. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Adjudicating Authority issued a show cause notice to them for rejection of the refund claim. It is also undisputed and on records that the revenue had not produced any contrary evidence to evidence produced by the respondent-assessee in form of Chartered Accountant certificate for coming to such a conclusion that the respondent-assessee had passed on the burden to the customers. 5.2 Based upon the factual matrix as indicated herein-above, we would like to record, that as regards the provisions of Section 12A, we find that the Hon'ble High Court of Punjab and Haryana in the case of Uniproducts (India) Limited (supra) has held as under: 9.?In pursuance to Rule 52A of the Rules the assessee is required to furnish various particulars/declarations as per Serial No. (ix) to (xiii) of the proforma as reproduced above. It is not a case where the assessee had paid any duty and recovered the same. The declaration in the invoice is in pursuance of statutory requirement. Therefore, the doctrine of undue enrichment would not be attracted to the facts of the present case. The appeal is wholly mis-conceived and the same is liable to be dismissed. 5.3 We find that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is mention of excise duty and the respondent reduced the dealers# price to the extent of excise duty component, which clearly proves that the incidence of excise duty has been passed on to the dealers. (iii) The following case laws are relied on : (a) CCE v. Gopi Synthetics Ltd. - 2004 (164) E.L.T. 172 (Tri.-Mumbai.) (b) Xerox Modicorp Ltd. v. CCE, Mumbai - 2001 (134) E.L.T. 523 (Tri.-Del.) (c) CCE, Mumbai v. Kores India Ltd. - 2003 (156) E.L.T. 1036 (Tri.-Mumbai) (d) JCT Limited v. CCE, Chandigarh-II - 2004 (163) E.L.T. 467 (Tri.-Del.). 3.?We heard both the sides. The lower authority after perusing the invoices had come to the conclusion that the incidence of duty has been borne by the respondents'. He has also taken into account the certificate issued by the Chartered Accountant. The fact that the price of the impugned products before the levy and after the levy remained the same is significant for deciding whether there is unjust enrichment. When the respondent reduced the dealers' price, it is very clear that they have taken upon themselves the burden of excise duty. The fact that excise duty was shown in the invoice is not con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urse is for it to refer the matter to a larger bench. 5.6 It is also seen that the Hon'ble High Court of Bombay in Criminal Application No.4230 of 2006 vide their judgment dated 18th December 2006 have held as under: 5. To say the least, the learned Additional Sessions Judge has committed a grave error in not following the binding precedent. The precedent does not cease to be binding merely because in the opinion o the learned Judge, the same is challenged in the Supreme Court and its operation stayed by the Supreme Court. In the decision reported in A.I.R 1992 Supreme Court Page 1439 in the case of M/s. Shree Chamundi Mopeds Ltd. v/s. Church of South India Trust Association, Madras, the Hon'ble Supreme Court has very succinctly pointed out the difference between a judgment being quashed and set aside and its operation stayed by the higher court. The judgment being stayed does not wipe it out unless and until it is so wiped out, it continues to be binding on the lower and subordinate courts. Thus, the learned Judge ought to have decided the application on the touch stone of the law laid down by this court as also the Hon'ble Supreme Court in other decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
