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TMI Blog2023 (10) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... trade practice commercial invoices are issued when no duty is charged and once the duty is charged then excise invoice are to be issued. In this matter for the past period the appellant had paid the duty under protest so naturally only commercial invoices had been issued to their customers and this fact had also been recorded by this Tribunal in its order while remanding the matter to the learned Commissioner. The learned Commissioner had only to see whether the Chartered Accountant s certificate endorses the claim of the appellant that they have not charged the duty from their customers to whom they have already issued commercial invoices. It is found that the said certificate explicitly supported the stand of the appellant as it ment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng material, received in plastic containers and bags were also disposed off by the appellants. Since the department was of the view that the duty was payable on such scrap cleared from the factory therefore as per their direction the appellant started clearing waste and scrap on payment of duty w.e.f. December, 2001 and also paid excise duty on past clearance of waste and scrap upto November, 2001 under protest . Ultimately the said issue regarding chargeability of the scrap generated during handling was settled by this Tribunal in favour of appellant herein vide order dated 6.6.2003 by observing that duty would not be chargeable as the scrap was a residual material generated during handling and was not the result of any manufacturing acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id that duty elements has not been passed on to the customers. So long as the invoice shown the duty amount, the same is deemed to have been passed on to the customers. Further, Hon'ble Supreme Court in the case of CCE, Mumbai Vs. Allied Photographics India Ltd., - 2004 (166) ELT 3 (SC) has observed as follows: 18. Before concluding, we may state that uniformity in price before and 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is set aside and the matter is remanded to the Commissioner (Appeals) for giving his findings on the issue. Further, since the Chartered Accountants certificate has been produced for the first time in the Tribunal and it was not produced before the Commissioner, the same may be considered along with other evidence. 4. After remand, the learned Commissioner vide impugned order dated 16.7.2018 while upholding the Adjudicating Order dated 17.4.2007 rejected the appeal filed by the appellant by recording a finding that the Chartered Accountant s certificate has not established that Excise duty elements have not been included in the value of the commercial invoices but was born by the appellant. 5. I have heard learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoices had been issued to their customers and this fact had also been recorded by this Tribunal in its order while remanding the matter to the learned Commissioner. It is settled through decisions that when duty had been paid during investigation at the insistence of the department post clearance of the goods, the provisions of unjust enrichment will not apply. The learned Commissioner had only to see whether the Chartered Accountant s certificate endorses the claim of the appellant that they have not charged the duty from their customers to whom they have already issued commercial invoices. I find that the said certificate explicitly supported the stand of the appellant as it mentioned by stating that HCCBL has not received any amount ov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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