9911796707
TMI Blog2010 (8) TMI 910X X X X Extracts X X X X X X X X Extracts X X X X ..... cessing the fabrics on job work basis. The appellants were working under compounded levy scheme formulated under Section 3A of the Central Excise Act, 1944 and were paying duty in terms of annual capacity of production determined by the competent authority. The same was determined under orders dated 15-6-1999 and 3-11-1999. There was further order passed in that regard on 8-3-2000 taking into account the gallery attached to the stenter as one of the chambers. Though the duty was paid accordingly by the appellants for the relevant period, the said order dated 8-3-2000 was challenged before this Tribunal and by the order dated 4-1-2001 the Tribunal set aside the order dated 8-3-2000, while allowing the appeal with consequential relief. Pursuant thereto the appellants filed an application for refund of duty, which the appellants had paid on account of order dated 8-3-2000. Such application was made on 20-2-2001 claiming refund of duty of ₹ 14,22,313/-. Consequently, show cause notice dated 8-5-2002 came to be issued to the appellants for rejection of the said claim and for appropriate order applying principle of unjust enrichment. The same was contested by the appellants and ult ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at very fact that the goods produced by the appellant were subject to duty liability, there was presumption about passing over of duty element to the consumers of the appellants and the burden was upon the appellants to establish that the duty element was not passed over to the consumer. The records placed before the authorities did not establish the same. No balance sheet was produced by the appellants and the so called accounts produced were not audited account books by the competent Chartered Accountant or auditors. The certificate is of the Cost Accountant and not of Chartered Accountant. In short, there was no cogent material to establish the contention sought to be raised on behalf of the appellants that the duty element was not passed over to the customers. Merely because the processing charges remained static throughout, that does not lead to presumption that it had ignored the duty element and in that regard reliance is placed in the decision of the Tribunal in the matter of Philips Electronics v. CCE, Pune-I in Appeal No. E/713/2006 delivered on 20-4-2010 [2010 (257) E.L.T. 257 (T)]. Attention is also drawn to the decision of the Larger Bench of the Tribunal in the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oity. To what extent we can agree with those findings is a totally different issue. 8. As regards, the contention of the learned Advocate for the appellants that the processing charges did not include the duty element is concerned the first leg of argument in support of his contention is that the appellants were covered by the compounded levy scheme. It cannot be disputed that on application of compounded levy scheme, the assessee pays the duty in instalments without reference to specific clearance of each consignment of the goods manufactured. Equally, it is true that the duty liability in such cases depends upon the determination of annual capacity of production by the competent authority and may not always have relation to actual quantity of production of the goods. However, the fact remains that once the annual capacity of production of a unit is fixed, undisputedly the presumption is that appellants would be able to manufacture the goods of the quantity which have been made the basis for determination of annual production of capacity of unit. In such cases, the assessee disputing the volume of total production in a year to justify any further claim based on such volume of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant period as also the total processing charges collected during the relevant period. Undisputedly, mere production of these two elements would not by itself prove non-inclusion of the duty element in the processing charges. The disclosure of the above details would have revealed as to whether the processing charges can be said to include the duty element or not. 10. As rightly pointed out by the Jt. CDR, one fails to understand the reason for suppressing the balance sheet from the authorities. Though the statement of accounts was produced to contend that duty element was shown as recoverable, the learned Advocate fairly conceded that the same was not reflected in the balance sheet. In the absence of such fact having not been reflected in the balance sheet, it is difficult to believe that the statement of accounts reflects true state of affairs. The so called certificate of Cost Accountant produced on record is also unbelievable. It merely states that the said certificate was issued as per the information and explanation given to us . The Certificate nowhere discloses the Cost Accountant having personally verified the accounts either by himself or with the help of his ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assets in the books of account . That is not the case in the matter in hand. Neither there is certificate of Chartered Accountant nor balance sheet. Certificate of Cost Accountant is unbelievable for the reasons stated above. 13. The Tribunal in Dabur India Ltd. case has dealt with the matter wherein the balance sheet was clearly favouring the contention raised on behalf of the assessee. In para 5 of the order, Tribunal has held thus : We find that the Tribunal in various decisions relied upon by the appellants has taken a view that in case balance sheet amount of refund was shown as recoverable, it has been taken as established that the appellants have not passed on extra duty burden but have borne the same themselves. In these circumstances, as the balance sheet which is as per record under the Companies Act showing the amount as recoverable from the revenue and in view of the earlier decisions on this issue impugned order is set aside. Obviously in the balance sheet the amount claimed as refund was shown to be recoverable, and hence the issue was answered in favour of the assessee. In appellants case, as already observed above, no such balance sheet is produced and th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
