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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 ..... 000, tyres and tubes were chargeable to Basic Excise Duty (BED) at the rate of 24% under the First Schedule to the Central Excise Tariff Act and also chargeable to SED at the rate of 8% under the Second Schedule to the Act. With effect from 1-3-2000, the rate of BED on tyres and tubes came to be reduced to 16% while the rate of SED was increased to 16%. In respect of SED, Notification No. 6/2000-C.E. was issued by the Central Government prescribing 'nil' rate of duty for tyres and tubes when used in the manufacture of motor vehicles in a place other than the factory of production. This exemption was subject to the further condition that the procedure set out in Chapter X of the Central Excise Rules, 1944 be followed by the manufacturer of the motor vehicles. In order to avail the benefit of this exemption, the assessee on 1-3-2000 itself applied to the proper officer of Central Excise for issue of CT-2 certificates for procurement of tyres and tubes from SATL and also for issue of registration certificate under Rule 192. The said officer took a long time to register the assessee under Rule 192 and issue CT-2 certificates. The CT-2 certificates were issued on 8-1-2001 and 5-3-2001 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having remained the same before and after the date of payment of duty was not conclusive evidence of the incidence of such duty having not been passed on to any other person. In this connection, reliance was placed on Commissioner v. Allied Photographics India Ltd. - 2004 (166) E.L.T. 3 (S.C.). After considering the submissions of both sides, this Bench allowed the assessee's appeal by accepting the Cost Accountant's certificate vide Final Order No. 308/2005, dated 28-2-2005 reported in 2005 (187) E.L.T. 499 (Tri.-Bang.). The final order was challenged by the department before the Hon'ble High Court under Section 35G of the Central Excise Act on the following two substantial questions of law. (a) In the facts and circumstances of the case, whether the CESTAT is legally justified in coming to the conclusion that the respondent has not passed on the burden of duty in question to the buyers, in spite of Section 12B of the Central Excise Act, 1944, and in the absence of sufficient evidence by the respondent to rebut the presumption under the said section? (b) Whether it is permissible for the CESTAT to totally ignore the effect of Section 12B of the Central Excise Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication in accordance with law and in terms of the order by the High Court. We also request the Tribunal to dispose of the appeal as expeditiously as possible, preferably within a period of six months from the date of receipt of the records." 4. The assessee's appeal accordingly arises for our consideration. 5. Heard both sides. The submissions made by the learned counsel for the appellant are summarized below : (i) The duty-paid tyres and tubes procured by the assessee from SATL during the period from March, 2000 to January, 2001 were used in the manufacture of four models of motor vehicles viz. Fleet, Family Saloon (FS), Grand Saloon (GS) and Grand Saloon Touring (GST). Parts like tyres, tubes, engine and chassis were common in all the four models. The cost of production varied from model to model depending on the special features of the different models. However, in respect of each model, the selling price remained the same prior to 1-3-2000 and after 1-3-2000 as certified by the Cost Accountant. The Cost Accountant's certificate in respect of only one model 'FS' could be produced before this Tribunal in the earlier round of litigation. The Hon'ble Supreme Court has enabled t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of filing of the refund claim. Therefore the certificates issued by the Cost Accountant without verifying the invoices will not be reliable. (iii) Even the books of account which are claimed to have been verified by the Cost Accountant have not been produced by the appellant. In the absence of books of account, invoices, etc., it may not be possible for this Tribunal to assess the evidentiary value of the Cost Accountant's certificates. (iv) The Cost Accountant's certificates are, at best, only corroborative evidence. They cannot be sole or conclusive evidence. Any primary evidence to show that the incidence of duty paid on tyres and tubes had not been passed by the assessee to the buyers of motor vehicles has not been brought on record. (v) For the aforesaid reasons, the refund claim is only liable to be rejected on the ground of unjust enrichment. 7. We have given careful consideration to the submissions. It is not in dispute that the assessee is eligible for the refund on merits. The only surviving issue is whether their claim for refund is barred by unjust enrichment or not. As per Section 12B of the Central Excise Act (Every person who has paid the duty of excise on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e buyers of the motor vehicles. Each of the other three certificates has certified that the selling price remained the same and hence the elements which constituted the selling price also remained the same from 1-3-2000 vis-a-vis the pre-1-3-2000 price. All the certificates also say that they were issued on the basis of verification of records maintained by the assessee. But, in answer to queries from the Bench, the learned counsel for the appellant has admitted that no records are available for verification. Therefore, any independent scrutiny of the primary records necessary for the assessee to discharge the burden of proof against the bar of unjust enrichment is not possible. In terms of the Supreme Court's remand order, we have stepped into the shoes of adjudicating authority and hence can call upon the assessee to adduce primary evidence to support their claim that the incidence of duty paid on tyres and tubes had not been passed on to the buyers of motor vehicles. 10. Section 12B ibid (Presumption that incidence of duty has been passed on to the buyer) cannot be read in isolation and has to be read with Section 12A (Price of goods to indicate the amount of duty paid thereon) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form of invoices in terms of Section 12A of the Central Excise Act. A certificate of Chartered Accountant/Cost Accountant is just a corroborative evidence only as held by the Hon'ble High Court vide 2010 (256) E.L.T. 216 (Kar.). The Hon'ble High Court's view was not disturbed by the Hon'ble Supreme Court vide 2011 (274) E.L.T. 321 (S.C.). Therefore, in the total absence of invoices and other records to proof the veracity of the certificate, the certificate will have no evidentiary value. All the four certificates produced by the appellant are of this category. Even assuming that the Cost Accountant of the assessee correctly certified uniformity of price of motor vehicles pre-1-3-2000 and post-1-3-2000, we are unable to accept the same as conclusive evidence of incidence of duty having not been passed on to the buyer of the vehicles because the certificates can only be considered to be in the nature of corroborative evidence and cannot be considered to be in the nature of primary evidence. 13. We have also perused the judgments cited by the learned counsel. In the case of Shakun Overseas (supra), the assessee was able to produce all the books of account, invoices and ledgers apart ..... X X X X Extracts X X X X X X X X Extracts X X X X
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