Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of Central Excise And ... vs G.K. Chemo Pharma (P) Ltd. on 9 April, 2007
Equivalent citations: 2007(118)ECC354, 2007ECR354(TRI.-MUMBAI), 2007(216)ELT293(TRI-MUMBAI)
ORDER M.V. Ravindran, Member (J)
1. This appeal is filed by the Revenue against order-in-appeal dt. 20.3.2003 which set aside the order-in-original.
2. None appeared on behalf of the respondent despite notice but filed a cross objection to the Revenue's appeal. Since the matter is of 2003 I take up the appeal for disposal in the absence of the respondent.
3. Heard the Ld. JDR.
4. It is the submission of the Ld. JDR that the Ld. Commissioner (Appeals) has not considered the fact that the respondents had not produced any documents in support of their refund claim so as to indicate that the said amount has not been passed on to the purchasers of the goods. He submits that the documents were produced for the first time before the Ld. Commissioner (Appeals) and hence the same should not have been considered by the Ld. Commissioner (Appeals) while allowing the appeal of the respondent. He submits that in the absence of any evidence before the adjudicating authority, the same could not be considered by the Commissioner (Appeals) and Ld. Commissioner (Appeals) reliance on the oral submission of the respondent is not correct. He prays for allowing the appeal and remanding the matter back to the adjudicating authority for considering the issue afresh.
5. On perusal of the records produced before me I find that the issue involved in this case is regarding the refund claim, which has been filed by the respondent in respect of the amount of duty, which was paid by them due to wrong calculation and not considering the price as 'cum duty prices'. It is also seen that the amount of trade discount given to the customer in form of quantity discount were not considered for calculation of the amount of duty payable by the respondents. The adjudicating authority has rejected the refund claim on the ground that the documents submitted by the respondents are not clear as to whether the burden of Central Excise duty has been passed on to the customer of the goods or otherwise. It is the claim of the respondent that they had produced all relevant documents as regards the refund claim before the lower authority. This reasoning has been filed as a Affidavit before the Tribunal.
Further, I notice that the Ld. Commissioner (Appeals) while allowing the appeal of the Respondents has specifically held as under:
Now, I will examine the applicability of the unjust enrichment clause in the present case. The copies of the Central Excise invoices issued by the manufacturer show that duty had been paid on the goods at Stockists price, which were cum duty price. The burden of the excess duty paid by the manufacturer was born by the Appellants in terms of the agreement entered between the two. While selling out these duty paid goods to the Stockists, the appellants have issued invoices showing therein the Stockists price along with usual quantity discount in the form of free supply. These invoices do not show the element of excise duty separately. Whereas, the Central Excise Invoices issued by the manufacturer do indicate the element of excise duty separately. The appellant's claim is that they had realized the price of the said goods from the Stockists as per the invoices issued by them and they have not realized any extra amount representing the duty of excise from their Stockists. Thus, the burden of excess excise duty suffered at the time of clearance of goods from the manufacturer's end was retained by the Appellants and not passed on to any other person. Therefore, the question of unjust enrichment in such a case may not arise at all.
The refund claim, in question, has not been preferred by the manufacturer who had paid the excess duty. Instead, it has been preferred by the Appellants who have born the incidence of excess duty paid on the excisable goods in question. The Appellants have produced a disclaimer certificate from the manufacturer stating therein that they had no objection on the Appellants claiming rebate of duty on the goods cleared by them. In terms of Section 11B, refund of duty can be claimed by a person, other than a manufacturer, if it is shown that the burden of the duty, of which refund has been claimed, has not been passed on to any other person. This condition is found fully satisfied in the present case.
It can be seen from the above reproduced portion that the respondents had produced documents evidencing that they had not passed on the burden of the excise duty to their customer but borne by them. As against these findings, the Revenue has not produced any evidence to show that the burden of excise duty has been passed on to the customer of the respondents. In the absence of any evidence to the findings of facts as given by the Commissioner (Appeals), the appeal of the Revenue fails.
6. Accordingly, the appeal filed by the Revenue is dismissed and Cross-Objection filed by the Respondent is also disposd off.
(Dictated in court)