9911796707
TMI Blog2016 (3) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... Preventive Officer when they visited the factory premises. The Preventive Officer has informed the appellant that they are liable to discharge the duty liability under the provisions of Section 4A for the goods which were reworked or repacked. The adjudicating authority has held that the amount of duty liability which has been debited by the appellant on the goods cleared were not covered on the date of clearance under provisions of Section 4A and they correctly discharged duty. Consequent to such order, wherein the demand was dropped the appellant filed an application for refund of the said amount. The said refund was sanctioned by the adjudicating authority but was credit to the Consumer Welfare Fund, on the ground that the appellant had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that if the duty paid has been shown as expenditure in the Books of account, the same would be treated as 'expenditure' and not as 'claim receivable'. It is his submission that they have made the deposit on 8.11.2006 and subsequently the appellant have given treatment of the said amount deposited as "receivable amount as once the incidence of duty has been passed on, in no case it can be reverted, the appellant wish to give the effect to the same, they should have filed revised balance sheet with the Income Tax Department. He would also rely on the judgment in the case of Raymond Ltd. - 2015 (316) ELT 128, that once the item is booked as expenditure in the Profit & Loss account then it signifies that the assessee has expensed out t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is paid after clearance of goods, on insistence of anti-evasion branch, burden of duty is not passed on to the customers. I reproduce the relevant paragraphs of the judgment:- 2. The revenue has proposed the following common questions in the two appeals as substantial questions of law: (a) Whether in the facts and circumstances of the case and in law the CESTAT is justified in rejecting the appeal of the Revenue in view of the refund claim amount being treated as expenditure in the respondent's Profit and Loss Account, these forming part and parcel of the cost of production, thereby stand recovered from the customers. Therefore, sanctioning of the refund will lead to unjust enrichment. (b) Whether in the facts and circumstances o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed by the Tribunal on a finding of fact that amounts of differential duty were paid subsequent to the clearance of the excisable goods on insistence of the Anti Evasion and thus, the burden of duty was not passed on to the customer. 7. Learned counsel for the appellant/revenue, however, relies upon the decision of the Apex Court in M/s. Sahakari Khand Udyog Mandal Ltd. v/s. Commissioner of Central Excise and Customs, (181) ELT 328 (SC) and Commissioner of Central Excise, Mumbai v/s. Allied Photographics India Ltd., 2004 (166) ELT 3 (SC) , wherein the Supreme Court laid down that doctrine of 'unjust enrichment' based on equity is invoked to deny a refund to person unless the person is able to show that he has paid the amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, the refund was held admissible. It was also found that in cases where duty is paid subsequent to the date of clearance, the presumption under Section 12B of the Act stood rebutted. However, in respect of the month of March, 1998 the deposit of Rs. 1,36,870/- was not refundable as it had been passed on to the buyer. The Revenue approached the CEGAT against the Order-in-Appeal dated 24-7-2001. The CEGAT vide its final order dated 16-4-2002 dismissed the appeal of the Revenue and upheld the Order-in-appeal by observing as under :- "5. We have heard the rival submissions. On careful consideration of the submissions made by both the sides we find that the respondents herein deposited Rs. 13,99,728/- towards central excise duty for the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel for the Revenue and find that no question of law would arise warranting acceptance of prayer of the Revenue to make a reference to this Court under Section 35G of the Act. The question whether the incidence of duty has been passed on to the buyer is necessarily a question of fact. The Commissioner (Appeals) as well as CEGAT in their respective orders dated 24-10-2001 and 16-4-2002 have recorded a categoric finding of fact that the incidence of duty could not be transferred to the buyer after the date of clearance as the duty had been paid on a subsequent date. This has been held to be sufficient to replace the presumption raised under Section 12B of the Act. Therefore, we find that no question of law warranting admission of this matt ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
