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TMI Blog2012 (10) TMI 642X X X X Extracts X X X X X X X X Extracts X X X X ..... h were already manufactured prior to 9-7- 2004 but were not cleared. Appellants paid Education Cess on such goods under protest. Later the issue was clarified by the Department of Revenue vide letter F. No. 345/2/2004-TRU, dated 10-8-2004 that the new Cess need not be paid on goods which were manufactured before 9-7-2004. The Appellants filed refund claims for such Cess paid on goods which were manufactured before 9-7-2004 but cleared alter. The Assistant Commissioner verified their claim and granted such refund. The revenue filed an appeal to the Commissioner (Appeals) on the ground that the issue whether the incidence of Cess was passed on to the consumer and whether unjust enrichment was being gained by the appellants by such refund was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) They had paid the Cess under protest because they had expected that the Cess will be refunded to them and there was no need to pass on the duty incidence; (iii) Their invoices do not show that education Cess was being collected from the buyer because invoices are issued on cum-duty price; (iv) The decision in the case of Allied Photographic India (Supra) is not applicable to the facts of this case because in that case the manufacturer had admitted passing on the burden to the dealers and refund claim was by the dealer. The dealer had not paid the duty under protest. Duty involved was paid during the period 1974 to 1984. After the refund claim of Allied Photographic was rejected the dealer filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und granted without issue of Show Cause Notice : (a) C.C.E. v. Tulsipur Sugar Co. Ltd. - 1999 (114) E.L.T. 784 (S.C.) (b) C.C.E. v. Inter Trade Electronics P. Ltd. - 2000 (124) E.L.T. 675 4. The ld. DR on the other hand argues that the fact that MRP did not change after imposition of Education Cess or that the Cess has been paid under protest cannot be proof enough to demonstrate that the incidence has not been passed on. He points out that in the case of Vikram Cement (supra), Cess was paid on 5-8-2004 for goods cleared on 9-7-2004 to 12-7-2004. In the present case Cess was cleared at the time of clearance of the goods itself. So there is a presumption that incidence has been passed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of levy and cleared after the levy and the legal position was that the new cess was not required to be paid on such stock (ii) The Appellant had paid the duty under protest showing an expectation that he was eligible for refund (iii) The Bills raised by the appellant to the dealers also continued to show the same transaction prices and same rates of duty was applied on the transaction price to arrive at the total price to be paid by the dealer, though this rate is shown as 10% towards taxes when the excise duty itself was 16% plus 2% of 16% as Education Cess. So it is clear that the appellant had not passed on the incidence to the dealer; (iv) The RSP of the goods was not changed to pass on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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