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TMI Blog2014 (1) TMI 1383X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant should be entitled for refund, and secondly, that the incidence of duty had not been passed on to the customers. While examining whether these conditions are satisfied it is necessary to bare in mind the deeming fiction in Section 12B of the Act. In the present case, it is not in dispute that the first condition stands satisfied. Therefore, what remains for us to examined is whether the incident of excise duty was passed on to the customers. Merely because, the assessee sold the vehicles at loss would not mean that the incidence of duty had not been passed on to the customers, more particularly, when the invoices issued to the customers admittedly had indicated the excise duty forming part of the price at which the vehicles were sold. If at all, the assessee suffered loss, it is clear, they suffered loss on their goods and it cannot be stated that excise duty paid by assessee was not passed on to the customers - Decided against the assessee. - C.E.A. No. 6 of 2013 - - - Dated:- 26-8-2013 - DILIP B. BHOSALE AND B. Manohar, JJ. For the Appellant : Rajesh Chandrakumar, Ravi Shankar and Chander Kumar. For the Respondent : C. Shashikantha. JUDGMENT:- Dili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd tubes by paying duty as prescribed in the schedules. The CT-2 certificate was, however, issued on 8.1.2001 and 5.3.2001. 4. In view of the said notification (No.6/2000-CE), an application was made by the assessee seeking refund of the duty paid by them on these items to the manufacturer thereof at Aurangabad. 5. The application under Section 11B of the Act seeking such refund, filed by the assessee, was however rejected by the Adjudicating Authority under Section 35 of the Act and was partly allowed by the Appellate Authority. Insofar as refund of the excise duty paid by the assessee on tubes and tyres is concerned, it was rejected by the Appellate Authority though it held that the assessee was entitled to seek refund. In other words, the claim of the assessee was rejected by the Appellate Authority on the ground that the assessee could not and did not place convincing material on record to demonstrate that the incidence of duty had not been passed on to the customers. The appeal was accordingly disposed of by the First Appellate Authority vide order dated 28.2.2002. 6. Feeling aggrieved and dissatisfied by the order of the first Appellate Authority, the assessee filed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to remit the matter to the adjudicating authority to consider the Cost Analysis Certificate dated 17.6.2002 now produced before this Court (said to have been produced before Tribunal also) and also such other material may be produced by the respondent to demonstrate that the incidence of duty has not been passed on to the customers for considering the refund claim of the respondent. In the event of such materials being placed before the adjudicating authority, the same shall be considered in accordance with the provisions governing refund claim and in accordance with law." 9. It was submitted before this Court that the Cost Analysis Certificate is sufficient to demonstrate that the incidence of duty, borne by the assessee, had not been passed on to the customers and it would be laborious process to produce 40,000 to 50,000 invoices raised on the customers in support thereof. In paragraph 9 of the order, this Court observed that "the cost, analysis certificate by itself would not be sufficient to substantiate the claim that the incidence of duty had not been passed on to its customers". It would be necessary to notice further observations made by this Court in the light of the sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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 the partly allow this appeal by directing that the matter shall now be remitted to the Tribunal for fresh and de novo adjudication of the entire disputes between the parties relating to all the models manufactured by the Appellant. While doing so, we set aside the earlier order of the Tribunal and request the Tribunal to consider the entire evidence on record, which is already available and which may be produced by any of the parties, for which an opportunity shall be granted to both the parties to produce additional evidence, if any. In terms of the aforesaid order, we partly allow this appeal to the extent indicated above and remit back the matter to the Tribunal for fresh adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore it to consider the claim of the assessee and in view thereof and for the reasons recorded in the impugned order held that the evidence on record is not sufficient to show that the incidence of Central Excise Duty paid on tyres and tubes, which were used in the manufacture of all four models of vehicles by the assessee, was passed on to its customers. It would be relevant to reproduce the observation made by the Tribunal in the impugned order in para 9, which read thus: "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 documents. The certificate issued in respect of 'fleet' model of motor vehicles manufactured and sold by the assessee says that this model of vehicle was manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund is claimed was collected from or paid by him and the incidence of such duty and interest if any, paid on such duty had not been passed on by him to any other person: x x x" (Emphasis supplied) Section 12A and 12B of the Act are also relevant which read thus: "12A. Price of goods to indicate the amount of duty paid thereon Notwithstanding anything contained in this Act or any other law for the time being in force, every person who is liable to pay duty to excise on any goods shall, at the time of clearance of the goods, prominently indicate in all the documents relating to assessment, sales invoice, and other like documents, the amount of such duty which will form part of the price at which such goods are to be sold. 12B. Presumption that incidence of duty has been passed on to the buyer-Every person who has paid the duty of excise on any goods under this Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods." (Emphasis supplied) 14. Section 11B of the Act is an enabling provision under which an assessee can, claim refund of duty and interest, if any, paid on such du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Cost/Chartered Accountants. The certificates in support of one model of cars were already produced on record and the assessee was allowed to produce similar certificates and the additional evidence/material in support thereof in respect of all the remaining three models of their cars. As observed by this Court earlier, and we are also of the same opinion, that Costs Analysis Certificate by itself would not be sufficient to claim that the incidence of duty had not been passed on to its customers. It is true that the assessee claims that certificates were issued on the basis of verification of records maintained by the assessee, but no such record was placed before the Tribunal for its perusal. Though, in our opinion, it was difficult to produce invoices in respect of 40,000-50,000 customers, but they could have produced atleast few such invoices on record to show whether the incidence of excise duty was passed on to the customer. That apart, to our specific query, learned counsel for the assessee, fairly stated that all invoices those were issued during the relevant period made reference to the tax component, namely, excise duty payable by the customer and it was, accordingly p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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