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TMI Blog2019 (12) TMI 1219X X X X Extracts X X X X X X X X Extracts X X X X ..... etc. remained the same, it can be concluded that the incidence of duty was not passed on to the consumer. Merely because the Excise duty is booked as expenditure in Profit Loss account, it cannot be said the incidence of duty has been passed on. Mere fact that the amount of differential CVD is shown as recoverable in profit and loss account is, in itself, not sufficient to prove that burden thereof has been passed by the assessee to the buyers. Onus otherwise rests upon the Department to prove the same. There is no such evidence produced by the Department. On the contrary, the assessee has placed on record the C.A. Certificate falsifying the allegations of unjust enrichment. Same cannot be ignored, that too, in absence of any evidence to the contrary. The questions decided in favour of the assessee-respondents - Appeal dismissed - decided against Revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... e refund of respective differential CVD paid was prayed. Though all the demanded documents were provided by the assessees, and were subjected to the audit, but vide respective Order-in-Original out of total refund claim of ₹ 5,22,16,320/- in Appeal No.51622/2019, ₹ 5,45,64,965/- in appeal No.51666/2019 and ₹ 5,45,64,965/- in Appeal No. C/51665 of 2019, a refund claim of ₹ 24,88,913/-, ₹ 3,29,15,387/- & ₹ 2,16,49,578/- respectively, as was not been shown accountable in the balance-sheet for the respective year, was ordered to be deposited with Consumer Welfare Fund. The respective appeals against the said orders were allowed setting aside the order of the credit of sanctioned refund amount to Consumer Welfare Fund and directing the same be paid to the assessee within 15 days of the said order. It is thereafter that review order No.07/2019 dated 10.07.2019 was passed proposing appeals to have been filed before this Tribunal. Resultantly, the Department in the present appeals is assailing the order of Commissioner (Appeals) dated 26.04.2019 & 28.03.2019. 4. We have heard Shri Rakesh Kumar, ld. A.R. for the Department-Appellant and Shri Tarun Gulati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al products do not depend solely on the price of impugned goods. Finally, impressing upon that it is very much apparent from the record that companies profit has increased in gross as well as net profit despite non-increase of sales price and CVD increased rates as applicable which is sufficiently to indicate that they have passed on the incidence of duty to the buyers and as such there is no infirmity in the order of the original adjudicating authority while ordering the credit of partial refund amount into Consumer Welfare Fund. Finally submitting that stereo type Chartered Accountant Certificate cannot be the sufficient evidence for assessee to discharge its burden as was held by Hon'ble High Court of Punjab & Haryana in the case reported as 2006 (202) ELT 773 (P & H). With these submissions, ld. DR has prayed for the impugned appeals to be allowed. 6. It is submitted on behalf of the respondent-assessee that the assessee has produced the Chartered Accountant Certificate as well as the requisite balance-sheets based whereupon it was observed that the assessee had discharged the statutory obligation of rebutting the presumption of unjust enrichment and accordingly, the amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of claim was rejected only on the ground that Balance-sheet was not showing the accountable of the amount of impugned Bill of Entry. This issue stands already decided even prior SRF decision in the case of M/s. Yu Televentures Pvt. Ltd. in Writ Petition No.2102/2017. The relevant portion is reproduced below:- "24. It has been explained by learned counsel for the petitioner that no refund claim had yet been made in respect of the aforementioned B/Es during the financial year which ended on 31st March, 2015. Since the refund applications were submitted only during FY 2015-16, the outstanding refund in respect of these four B/Es could not have been shown in the balance sheet for FY 2014-15. Indeed, the mere fact that this amount was not shown as outstanding during the year 2014-15 would not mean that the petitioner is not entitled to claim refund. The petitioner cannot possibly be denied refund if it, in fact, did not pass on the burden of CVD to its customers. 25. What respondent No. 4 had to examine was whether the claim of the petitioner that it had not passed on the incidence of CVD in respect of the above B/Es for 27th March, 2015 to 31st March, 2015 to the customer was sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t notices from the record that the concerned adjudication officer, who rejected the petitioner's claim for refund has adopted the same approach that she did which became the subject matter of scrutiny in several previous orders commencing from Micromax (supra). We notice that the Micromax (supra) was revisited in Yu Televentures v. Union of India [W.P. (C) No. 6750/2016, decided on 3-8-2016]. In the present case as well, the order rejecting the refund was made during the same period and apparently by the same officer who rejected the refund claim in Yu Televentures (supra). 5. It is contended lastly by the respondents that this Court should not grant relief in this case since there is no ascertainment as to whether the CVD was in fact passed on and collected from the end user. The petitioner, on the other hand, submits that all relevant documents, including the Chartered Accountant's certificate as required by the rules were furnished. The relevant part of the CA's certificate reads as follows: "D. That for the purposes of examining the clause of unjust enrichment to the importer in respect of subject refund claim we have verified the importer's Books of Accounts and other re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein it has been so ruled by the Tribunal. The Revenue had not produced any evidence to contradict the documentary evidence produced by the appellants referred to above. Therefore, the un-rebutted evidence of the appellants that their selling price of the final product was not influenced by payment of duty on the inputs during the period in question and that the price remained the same or even on certain occasions stood reduced, deserves to be accepted. From all this evidence brought on record, it stands amply proved that the incidence of duty had not been passed on by the appellants to the buyers/consumers during the period in question." Though learned DR has laid emphasis on Section 28C of the Customs Act, 1962 about presumption for incidence of duty to have been passed on customers but - * Present is a case of composite price where duty is not shown separately * Auditor's certificate is there * No evidence of Department to contrary Hence, we are of the opinion that said presumption stands rebutted. 12. We draw support from decision of Karnataka High Court in case of Commissioner of Customs, Bangalroe vs. Apple India Pvt. Ltd. reported in 2014 (309) E.L.T. 29 wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' invoice showed a composite price and duty was not indicated separately and the sale price of the goods before as well as after the reclassification, revaluation etc. remained the same, it can be concluded that the incidence of duty was not passed on to the consumer. Merely because the Excise duty is booked as expenditure in Profit & Loss account, it cannot be said the incidence of duty has been passed on. 15. In the case of Mohan Sales (India), [2003 (158) E.L.T 667 (T)] the Tribunal set aside the finding of unjust enrichment and also the direction of crediting the same to welfare fund on the ground that it is not possible to sell goods on losses, was set aside. It was held that presumption in law having passed the duty burden is a rebuttable presumption. It was also held that since invoice and certificate was not being disputed, the order of sanctioning refund but directing the same to be credited to Consumer Welfare Fund is not sustainable. 16. Decision of Bharat Electronics as relied upon by ld. D.R. is not applicable to the facts of the present case as the present is not the case of captive consumption. Moreover the decision has relied upon Solar Pesticides reported in 2000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccountant's certificate. 19. Further Tribunal Ahmedabad held in Commissioner of Central Excise, Surat-II vs. Binakia Synthetics Ltd. reported in 2013 (294) E.L.T. 156 (Tri. - Admd.) that: Merely because the said certificate does not give the details of costing etc., will not turn it into a bad certificate. 20. In view of above discussion, we hold that the mere fact that the amount of differential CVD is shown as recoverable in profit and loss account is, in itself, not sufficient to prove that burden thereof has been passed by the assessee to the buyers. Onus otherwise rests upon the Department to prove the same. There is no such evidence produced by the Department. On the contrary, the assessee has placed on record the C.A. Certificate falsifying the allegations of unjust enrichment. Same cannot be ignored, that too, in absence of any evidence to the contrary. 21. Resultantly, both the questions as framed above stands decided in favour of the assessee-respondents, thereby upholding the order of Commissioner (Appeals). Consequent thereto, the stay applications seeking stay of operation of Order-in-Appeal and these appeals as filed by the Department praying by setting aside the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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