Custom, Excise & Service Tax Tribunal
M/S. Aman Marble Industries Pvt Ltd vs Cce, Jaipur on 16 January, 2013
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Court No.II
E/Appeal No.2713/2005
(Arising out of order in appeal No.260(RM)CE/JPR.II/2005 dated 25.5.2005 passed by the Commissioner of Customs & Central Excise(Appeals), Jaipur)
Date of Hearing: 16.1.2013
For Approval and signature:
Honble Mrs. Archana Wadhwa, Member Judicial
Honble Mr.Sahab Singh, Technical Member
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1. Whether Press Reporters may be allowed to see
The order for publication as per Rule 27 of the
CESTAT(Procedure) Rules, 1982?
2. Whether it would be released under Rule 27 of
the CESTAT (Procedure) rules, 1982 for
publication in any authoritative report or not?
3. Whether their lordships wish to see the fair
copy of the order?
4. Whether order is to be circulated to the
Department Authorities?
M/s. Aman Marble Industries Pvt Ltd Appellants
Vs
CCE, Jaipur Respondent
Appeared for the Appellant: Shri L.P. Asthana, Advocate
Appeared for the Respondent: Shri A.K. Jain, Jt. CDR
Coram: Honble Mrs. Archana Wadhwa, Member Judicial
Honble Mr. Sahab Singh, Member Technical
final ORDER 55349 dated 16/01/2013
Per Archana Wadhwa:
After hearing both the sides, we find that the issue in the present appeal relates to refund of excise duty paid by the appellants during the period April 1991 to March, 1994 when they were contesting the issue of manufacture as regards their activity of cutting the marble slabs. The said activity was ultimately held as not amounting to manufacture by the Honble Supreme Court.
2. As a consequent to the above development the appellants claimed refund of duty paid on their final product during the period April 1991 to March, 1994. Though there is no dispute on merits, such refund claim stand denied by the lower authorities on the ground of unjust enrichment. The order of the original authority stands upheld by the Commissioner (Appeals). Hence the present appeal.
3. On going through the impugned order, we find that the appellants changed the invoice pattern w.e.f 22.4.1991 by increasing the processing charges which according to the lower authorities are on account of inclusion of central excise duty. There is a finding of fact by the lower authority that the processing charges become more on account of processing charges and excise duty being collected for the same time on goods of comparable quantity from the same/similar customers prior to 22.4.1991. As such, they have concluded that the excise duty element was being charged by the appellants from their customers and the refund of the same would be hit by the bar of unjust enrichment.
4. The appellate authority has also relied upon the Honble Supreme Court decision in the case of Allied Photographic case 2004 (166) ELT 3 as also in the case of JCT Ltd Vs CCE Chandigarh-II reported in 2004 (163) ELT 467 lying down to the effect that a continuous price shown in the invoice cannot lead to conclusion that assesse has not passed on incidence of duty to their customers. Reliance was also placed on the Tribunals decision in the case of Hawkins Cooker Ltd Vs CCE Mumbai II reported in 2004 (176) ELT 191. We also note that the Tribunals decision in the case of JCT Ltd stands upheld by the Honble Punjab & Haryana High Court reported in 2006 (202) ELT 773 (P&H).
5. It is well established that the burden to prove that the duty of which refund is being claimed, does not stand collected by the assesse from its customers is on the assessee. The appellant in the present case has lost its stand and upheld to the level of Tribunal and filed an appeal there against before the Honble Supreme Court which stand accepted by them. There is a huge time gap between the decision of the Tribunal and the decision of the Honble Supreme Court. As such, during the relevant period the decisions of the lower authorities were against the appellant holding their activity to be a manufacturing activity liable to pay duty of excise. In such a scenario, a common prudent business man would collect the duty which he was paying on their final product from their customers and would not take the risk of not collecting such duty, and to bear the loss from his pocket, in the case the appeal is dismissed by the highest authority. In these circumstances the onus becomes more heavy on the appellant to be discharged by production of evidence that such duty was not being charged by them from their customers. We do not find any evidence produced by the appellant on record. By following the ratio of law declared by the Apex Court decision referred supra and by taking into consideration that w.e.f. April, 1991, the appellant invoice pattern changed, we find no merit in the appeal. The same is accordingly rejected.
(Order dictated and pronounced in the open Court.) (ARCHANA WADHWA) Member Judicial (SAHAB SINGH) Member Technical MPS* ??
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