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TMI Blog2013 (4) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... d not been passed on to the buyers of motor vehicles. It is pertinent to note that the Cost Accountant’s certificates do not specify any records or books of account which were claimed to have been verified at his end. Even the certificate issued on 17-6-2002 is silent about specific records or other books of account. No records or books of account, nor any invoices, were produced by the assessee The appellant failed to rebut the presumption created in favour of the Revenue under Section 12B of the Act. Consequently, we hold that the incidence of SED paid on tyres and tubes which were used in the manufacture of motor vehicles by the assessee was passed on to the buyers of the motor vehicles. Consequently, the refund claim is barred by unjust enrichment. The impugned order is sustained and this appeal is dismissed. - E/716/2002 - 551/2012 - Dated:- 8-8-2012 - Shri P.G. Chacko and M. Veeraiyan, JJ. Shri N. Anand, Advocate, for the Appellant. Shri R.K. Singla, Commissioner (AR), for the Respondent. ORDER This appeal filed by M/s. Toyota Kirloskar Motor Ltd. (assessee) is directed against rejection of their claim for refund of Special Excise Duty (SED) paid on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 60,77,117/-. 2. The Deputy Commissioner issued show-cause notice dated 8-5-2001 to the assessee proposing to reject the refund claim on the ground of non-production of end-use certificate and on the further ground of absence of evidence of the incidence of duty having not been passed on to any other person. The proposal was contested by the assessee. In adjudication of the dispute, the Deputy Commissioner rejected the refund claim on two grounds viz. (a) the benefit of Notification No. 6/2000 was not available to the tyres and tubes cleared by SATL to the assessee as Chapter X procedure was not followed by the latter, (b) the assessee had not established that they had not passed on the incidence of duty to any other person. The assessee preferred an appeal to the Commissioner (Appeals). The appellate authority held in favour of the assessee on merits but upheld the decision of the lower authority on the question of unjust enrichment. The present appeal of the assessee is directed against the adverse part of the Appellate Commissioner s order. 3. This is the second round of litigation before this Tribunal on the same subject matter. In the earlier round, the appellant (assessee) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee filed Civil Appeal No. 2911 of 2010 under Section 35L of the Central Excise Act. After hearing both sides, the Hon ble Supreme Court disposed of the Civil Appeal [2011 (274) E.L.T. 321 (S.C.)] in the following terms : 4. We have carefully considered the submissions of the counsels appearing for the parties. In our considered opinion, fresh evidence was taken notice of by the Tribunal in the manner of production of the certificate dated 17-6-2002 issued by the Chartered Accountant. The effect and implication of the contents thereof are required to be examined in the light of any other evidence that may be available on record or could be made available. The parties are also required to be given opportunity to adduce such other materials which may be produced by either of the parties in respect of the disputes between them so as to enable the Tribunal to come to an appropriate finding on all the issues and in respect of all the models. In that view of the matter, we see no reason to interfere with the findings recorded by the High Court but instead of remitting back the matter to the adjudicating authority, we direct and partly allow this appeal by directing that the matter sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng price of the motor vehicles having remained the same prior to 1-3-2000 and after that date. Accordingly, the appellant should be held to have proved that the incidence of duty was not passed on to any other person. (iii) The above certificates are based on due verification of the assessee s records and are authentic and hence cannot be rejected inasmuch as the department did not contest the evidentiary value of the first certificate before the Apex Court and the assessee was enabled by the Apex Court to produce the certificates of Cost Accountant as evidence against the bar of unjust enrichment. Similar certificates were accepted by this Tribunal in the case of Shakun Overseas Ltd. v. Commissioner - 2002 (140) E.L.T. 444 (Tri.-Chennai) and by the Hon ble Madras High Court in the case of CCE, Coimbatore v. Flow Tech Power - 2006 (202) E.L.T. 404 (Mad.). 6. The submissions of the learned Commissioner (AR) are summarized below : (i) The burden was on the assessee under Section 12B of the Central Excise Act to prove that the incidence of SED paid on the tyres and tubes had not been passed on to the buyers of the motor vehicles, in the manufacture of which the tyres and tubes h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether such evidence is adequate to establish that the incidence of SED paid on the inputs had not been passed on to the buyers of the final products. 8. As a matter of fact, the Hon ble High Court had remanded the case to the original authority but the Hon ble Supreme Court found it appropriate to remand the case to this Tribunal. The Apex Court accordingly remanded the case to us without disturbing the view taken by the High Court on the substantial questions of law. That is why we have to assess the evidence on record having regard to Sections 12A and 12B of the Central Excise Act in view of the findings rendered by the Hon ble High Court on the substantial questions of law. 9. The evidence adduced by the assessee consists of the following documents :- (i) Cost Accountant s certificate dated 17-6-2002 in relation to FS model of motor vehicles. (ii) Cost Accountant s certificate dated 18-11-2011 in relation to GS model of motor vehicles. (iii) Cost Accountant s certificate dated 18-11-2011 in relation to GST model of motor vehicles. (iv) Cost Accountant s certificate dated 18-11-2011 in relation to Fleet model of motor vehicles. We have perused these documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inently indicate the amount of duty in all the documents relating to assessment, sales invoice, etc., pertaining to sale of the motor vehicles. Such documents would have clearly shown whether the incidence of duty forming part of the sale price of the motor vehicles had been passed on to the buyers of the vehicles. These invoices are admittedly not available with the appellant. We note that the assessee had admitted before the Hon ble High Court that they did not have the relevant invoices. Before us also, it is not in dispute that the invoices covering sale of motor vehicles by the assessee, which are the primary documents as per Section 12A required to disprove unjust enrichment, are not available. 11. It is pertinent to note that the Cost Accountant s certificates do not specify any records or books of account which were claimed to have been verified at his end. Even the certificate issued on 17-6-2002 is silent about specific records or other books of account. No records or books of account, nor any invoices, were produced by the assessee before the Hon ble High Court or the Hon ble Supreme Court. Apparently, before both the courts, they claimed to be able to furnish addition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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