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TMI Blog2008 (5) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... m to the extent of Rs, 19,38,750/- would be credited in their RG23A Part-II account inasmuch as the duty was paid out of the modvat account. Revenue is aggrieved with the entire order of refund whereas the appellant's appeal is against that part of the refund which is ordered to be credited in modvat account and not to be refunded in cash. 2. As per facts on record, the assessee is engaged in the manufacture of feed supplement. During the relevant period there was dispute about the classification of the same. Whereas the appellants had classified the goods under chapter heading 23.02, Revenue classified the same under chapter 29. The dispute of classification was finally settled by Commissioner (Appeals) vide his order dated 12-2-1998 upholding the assessee's stand. As a result, assessee became entitled to refund of duty paid extra on the goods cleared by them during the period April, 1993 to March, 1995. The said refund claims were rejected by the Asst. Commissioner on the ground of unjust enrichment after following the due process of adjudication. However, the said order of Asst. Commissioner was set aside by Commissioner (Appeals) and the matter was remanded with directions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e report to Commissioner (Appeals) vide his letter dated 5-5- 2002. For better appreciation, we reproduce the said report as under: "F-.No. V. Ch. 23(2) 06/99-R Dated:- 5-5-2002 To, The Commissioner (Appeal), Central Excise Customs, Ahmedabad. Sir, Subject: Appeals pled by M/s. Cadila Veterinary Ltd. against OIO No.158/98-R and 159/98-R both dated 19-11-1998 passed by the Assistant Commissioner, Central Excise, Division-V, Ahmedabad. Please refer to your letter issued from F. No. 12(23)102/Ahd-I/99 dated 11-2-2002 on the subject matter wherein it has been directed to ascertain whether the duty has been passed on to the consumer or not. M/s. Cadila Veterinary Ltd. (hereinafter referred to as the Appellant in the memorandum of Appeal and P.H held on 7-2-2002 have contended that Assistant Commissioner Central Excise, Division-V, Ahmedabad-I vide OIO No. 158/98-R and 159/98-R dated 19-11-1998 has rejected the captioned re fund claim under the presumption that the incidence of duty has been passed on the buyer under Section 12(b) of the Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of GPIs. Further retail, sales were done under cover of commercial invoice and in the commercial invoice central excise duty is not shown or charged in respect of disputed product, and the amount recovered as mentioned in sales ledger and party ledger is the same as mentioned in commercial invoices. 3. That on scrutiny it is revealed that in the GPIs. the assessable value is arrived, at by showing the rate per unit as less 10% of the price indicated in the commercial invoice and duty is discharged accordingly. However, in the commercial invoice issued to their distributors 2 discount, is passed on to the buyer whereas in case of direct sales they are passing on discount to the tune of 12.5%, 12%, 10 and 8% respectively. Also the appellants vide their letter dated 5-7-2002 have admitted that in certain cases the rate charged in sales invoice is higher than the GPI and an excess amount of Rs. 1,83,2747/- is collected from the buyers. In view of the, above refund claim is required to be reduced to that extent. 4. From the above verification and C.A. certificate submitted by the appellants, it appears that the appellants have not passed on the burden of incidence of central excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed the earlier decisions of the Tribunal for holding that in the absence of any evidence to doubt the correctness of the Chartered Accountant's certificate, the same should be accepted. 7. We further note that the appellate authority has taken into account the appellant's submission that duty so paid by them had been transferred to profit and loss account i.e. had been treated as an. element of expenditure and had been borne out by them. The argument that nobody will pay the duty from his own pocket cannot be given preference over the documentary evidences produced by the assessee. Further, Commissioner (Appeals) has also observed as under :- "24(i) I do agree with their submissions that the net price charged in the invoice is below the assessable value in every case. Then obviously the conclusion follows that, excise duty had not been recovered from the buyers. I also appreciate the submissions of the appellant that there was no ground whatsoever on the part of the adjudicating authority to differ on any conclusion arrived on by the authority having parallel and concurrent jurisdiction in the same matter and when he was lawfully entrusted to inquire in the matter by the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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