9911796707
TMI Blog2012 (10) TMI 642X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent. [Order]. The Appellants are manufacturers of footwear which is subject to duty on the basis of M.R.P.. In Budget of 2004 a new Cess by name Education Cess was levied with effect from 9-7-2004 on such products to be paid at 2% of the basic duty to be paid. A question arose whether the appellants had to pay the new Cess on goods which 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 whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n behalf of the appellants are the following : (i) The M.R.P. on the goods remained the same before budget and after budget. Rebate prescribed for arriving at assessable value also remained the same. So when extra duty was paid it was from their profit margin only and they have not passed on the additional duty burden; (ii) 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 bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the same. Only appeals have been filed against the order sanctioning refund. The Appellants point out the following decisions to contest that Revenue cannot recover the refund 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er relates to a short period and specified quantity of goods which were manufactured before the imposition 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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