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TMI Blog2020 (3) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... Duty) Rules, 2010 read with Section 3A of the Central Excise Act, they are liable to pay Excise duty on the basis of annual capacity of production under Rule 5 of the said Rules. Accordingly, the duty payable by them per month was determined as follows :- Sl. No. Brand Name RSP per pouch (Rs.) No. of machines in operation Deemed Annual capacity as per Notifn. 20/2012-C.E. (N.T.), dated 19-3-2012 (per year) Duty payable (in Rs.) 1. Miraj-8 gm 3.00 18 (Eighteen) 3032640*18*12 = 655050240 nos. 32,00,000*18 = Rs. 5,76,00,000 per month 2. Miraj-14 gm 5.00 02 (Two) 2845440*02*12 = 68290560 nos. 50,00,000*02 = Rs. 1,00,00,000-per month 3. Miraj-1.2 gm 2.00 01 (one) 3032640*1*12 = 3 6391680 nos. 21,50,000*1 = Rs. 21,50,000- per month Total Duty payable Rs. 6,97,50,000/- 3. Further, the assessee was directed to deposit the said amount from 1-10-2012 onwards. 4. In response thereto, the assessee informed the Authority that they have already paid an amount of Rs. 59,775/- on the basis of transaction value and, therefore, they deposited the balance amount of Rs. 20,90,225/- under protest and categorically mentioned in their intimation dated 28-12-2012 to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en observed : "9. After hearing both the sides we find that the issue required to be decided in the present appeal is as to whether the filter Khaini pouches manufactured by the respondents with the help of packing machines are required to be considered as notified goods in terms of Notification No. 10/2010-C.E. (N.T.), dated 27-2-2010 and whether the same are required to be taken into consideration while determining the annual capacity of production and collection of duty. We note that there is not much dispute on the facts of filter khaini pouches admittedly being manufactured with the aid of the packing machine which operate with the aid of power. Ten of such filter khaini pouches are further packed in packed plastic pouches manually and without any packing machine." The Tribunal further observed that : "The filter khaini, pillows/sachets packed with the aid of packing machine do not bear any brand name, MRP, warning as to health hazards and manufacturer's particulars, as required under the Capacity Rules, it cannot be held that the same are notified goods in terms of the compounded levy rules. The same are more or less like the Tea bags, which are without any brand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when duty is paid under compounded levy. I find that the Compounded Levy and its scheme is self-contained enacted code. It provides for rate of levy, manner of demand, for interest as well as for penalty, etc. The general provision of C. Ex. Rules and Act are not attracted to the provisions and to the Scheme of Compounded Levy for which the enabling provisions were made under the provision of Section 3A of the Act and the Rules made thereunder. It has already been settled by the Hon'ble Tribunal's Division Bench and Larger Bench that in case of Compounded Levy the provisions of Section 11A & the provisions of Section 11B of CEA does not apply and no unjust enrichment can be alleged on appellant part. Those case laws are : (i) CCE, Mumbai-V v. Shree Ram Textile & Processing Mills (I) P. Ltd., as reported in 2006 (193) E.L.T. 485 (Tri. - Mumbai). "Para 5. It is further seen that the provisions of Section 11B are applicable to refund of duty excess paid relatable to actual clearance of the goods. Payment of duty under the compounded levy scheme in terms of the annual production capacity fixed is not relatable to clearance and sale. Assessee working under the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 012 to Feb., 2013 and remaining amount of Rs. 80,31,879/- was debited to "Advance Central Excise Deposit" which appeared as current assets recoverable from Government. The appellant at the end of financial year 2013-2014 transferred the said amount of 80,31,879/- (Rs. 20,90,775/- + Rs. 14,74,571/- + Rs. 14,85,359/- + Rs. 14,88,779/- + Rs. 14,92,395/-) to expense head by reducing the profit of the year. I find that the subject refund claimed amount had been reflected as "advance excise duty deposit" in the Balance Sheet for the relevant period. Further, invoices issued by the appellant indicates that they have paid the excise duty on transaction value only. Thus, the above documents prove beyond any shadow of doubt that the incidence of duty in these cases has not been passed on by the appellant and the same has been borne by it. Thus, under the facts and circumstances of the cases, the doctrine of unjust enrichment is not applicable. In support of my contention, I placed reliance on following case laws. 6.4 I observe that the reducing the profit does not debar the appellant from refund as held in the following judgment : (i) Sunbeam Auto Ltd. v. Commissioner of Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he price charged to the buyers remains the same due to number of other factors. Further, the respondent/assessee was not showing Central Excise duty separately in the invoice during the period under dispute. As such, the buyers were not in a position to state what was the duty element in the price charged from them. It has been held in the Allied Photographics India Ltd. (supra) that absence of change of price prior to and post-imposition of levy, does not lead to the inevitable conclusion that the burden has not been passed on to the buyers. Further, it is printed in the invoices, a clear stamp, "Compounded Levy under Notification No. 36/98-C.E. (N.T.), dated 10-12-1998", which indicates that burden of duty has been passed on. 10. Further, reliance is placed on Section 12B of the Central Excise Act, 1944, which provides that every person, who has paid the duty of excise on any goods under this Act shall, unless the contrary is provided by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods. Thus, the presumption is in favour of the Revenue that duty has been passed on to the buyers of the goods, where invoices were raised under the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been held that it is immaterial and irrelevant as how assessee treats amount deposited, in compliance with interim order, in his books of accounts. Even if it is shown on the 'expense side' that does not mean, that the presumption that the burden has been passed to the consumer can be raised. Ld. Counsel further states that, facts being similar in their case, the Ld. Commissioner (Appeals) has rightly allowed their appeals. Accordingly, he prays for dismissal of the appeal filed by Revenue. 13. Having considered the rival contentions, findings of fact in the impugned order have not been disputed by the Revenue. Further, in view of the categorical declaration in the invoices that the assessee have collected duty on the basis of the transaction value, which is further supported by the accounting treatment in the books of account, I hold that there can be no presumption that the assessee has passed on the duty paid under Compounded Levy Scheme, to the buyers of their goods. This proposition is also supported by the ruling of the Bombay High Court in the case of Sandvik Asia Ltd. (supra). 14. Sofar as the ruling relied upon by the Revenue in the case of Allied Chemical & P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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