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TMI Blog2016 (11) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... ilment of exemption. In fact the assertion of the appellant that price has been uniform is misplaced and is not correct. Section 11B of the Central Excise Act, 1944 put the onus of proving all the burden of duty has not been passed on to the customers and passed on claiming the refund. It is clear that the simple fact that the price of the product was uniform does not lead to a conclusion that incidence of duty has not been passed on - appeal dismissed - decided against appellant. - E/1118/11 - A/87042/16/SMB - Dated:- 13-4-2016 - Mr. Raju, Member (Technical) Shri.Rajesh Oswal, Advocate for appellant Shri.NN Prabhudesai, Supdt. (AR) for respondent ORDER The appellant, M/s.Midas Care Pharmaceuticals Pvt. Ltd., man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted a Chartered Accountant s certificate for the first time in the Tribunal which indicated that during the period when the appellant had stopped availing the benefit of the notification they had reduced their assessable value and started paying the Central Excise duty in such a manner that realization from their dealers did not change much and the MRP of the product remain the same through out the period. He however, admitted that the invoices issued to the dealers contained the full duty element as part of the invoice. 2.1 The learned Counsel argued that since the price of the product to the dealer did not change significantly during the period when they were paying duty under protest and the period when they were availing the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chartered Accountant s certificate it has been submitted by the appellant for the first time in Tribunal. I find that the claim of the appellant that the price to the dealer before and after the period in dispute is the same is incorrect. It can be seen from the certificate that the price for sale in outside Maharshtra have in fact reduced and changed a number of times during this period. For example, the cum duty price (which is the price for the wholesale dealer) are as follows: Maharashtra Kerala Tamilnadu Chandigarh May 99 78.05 71.41 72.32 86.32 J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the assessment does not lead to the inevitable conclusion that incidence of duty has not been passed on to the buyer as such uniformity may be due to various factors. Hence, even on merits, the respondent has failed to make out a case for refund. Since relevant factors stated above have not been examined by the authorities below, we do not find merit in the contention of the respondent that this Court should not interfere under Article 136 of the Constitution in view of the concurrent finding of fact. From the above, it is clear that the simple fact that the price of the product was uniform does not lead to a conclusion that incidence of duty has not been passed on. The appellants have not made any other arguments and have fai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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