Custom, Excise & Service Tax Tribunal
M/S. Hindustan Coca Cola Beverages Pvt. ... vs Cce, Jaipur-I on 24 March, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST BLOCK NO. 2, R.K. PURAM, NEW DELHI COURT III EXCISE APPEAL NO. 1757 OF 2007-SM. [Arising out of Order-in-Appeal No. 72(GRM) CE/JPR-I/2007 dated 23.03.2007 passed by the Commissioner (Appeals-I), Customs & Central Excise, Jaipur] For approval and signature: Honble Mr. P.K. Das, Member (Judicial) 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 Departmental authorities? M/s. Hindustan Coca Cola Beverages Pvt. Ltd., Appellant Vs. CCE, Jaipur-I Respondent
Appearance:
Smt. Shirin Khajuria, Advocate for the Appellants; Shri M.M. Singh, D.R. for the Revenue Coram:
Honble Mr. P.K. Das, Member (Judicial), Date of hearing/decision: 24th March, 2009 FINAL ORDER NO._________________ dated __________ Per P.K. Das:
The appellants filed this appeal against rejection of refund claim of Rs. 36,396/- by the Commissioner (Appeals) on the ground of unjust enrichment, which was sanctioned by the original authority.
2. The relevant facts of the case, in brief, are that the appellants are engaged in the manufacturing of aerated water bottles. Education Cess was introduced on 9th July, 2004. They paid Education Cess wrongly on the goods which were cleared after 9.7.2004 but, manufactured prior to 9.7.2004. The original authority sanctioned the refund claim. Revenue filed appeal before the Commissioner (Appeals) whereby adjudication order was set aside and refund was rejected on the ground of unjust enrichment. Hence, the appellants filed this appeal.
3. Learned Advocate submits that the price remained same, i.e. prior and during the period in question and there is no scope to presume that the incidence of duty amount was passed on to any other person. She relied upon the decision of the Tribunal in the case of AURO LAB vs. CCE, Madurai, reported in 2005 (185) ELT 88 (Tri.- Chennai). She also submits that the Commissioner (Appeals) erroneously proceeded on the basis of invoice and failed to accept the affidavit stating that the incidence of duty had not passed on to any other person. She relied upon the decision of the Tribunal in the case of C.C. & C.E., Guntur vs. Empee Sugar & Chemicals Ltd., reported in 2007 (211) ELT 293 (Tri.-Bang.). She submits that the Commissioner (Appeals) passed the order without considering the affidavit which indicates that incidence of duty was not passed on to any other person.
4. Learned D.R. reiterates the findings of the Commissioner (Appeals). He submits that section 12A prescribe the sales invoice as a document for selling of the goods. He further submits that invoice indicate the charging of Education Cess which was not refuted by the appellants. He relied upon the decision of the Tribunal in the case of Beckon Electronics Pvt. Ltd. vs. CCE, Rajkot, reported in 2004 (167) ELT 221 (Tri.-Mumbai).
5. After hearing both sides and on perusal of the records, it is seen that the appellants had shown Education Cess in the invoice. Section 12A of the Central Excise Act, 1944 provides that every person who is liable to pay duty of excise on any goods shall, at the time of clearance of the goods, prominently indicate in all the documents relating to assessment, sales invoice, and other like documents, the amount of such duty which will form part of the price at which such goods are to be sold. So, invoice is a basic document for the purpose of assessment of duty on the goods at the time of clearance from the factory. In the present case, there is no dispute that the appellants mentioned Education Cess in the invoice. Therefore, in terms of Section 12D of the Act, it is presumed that the incidence of duty has been passed on to the buyers. Learned Advocate strongly relied upon the affidavit dated 25.11.2004. On perusal of the said affidavit, I do not find any averment that the charging of Education Cess in the invoice has not been passed on to the buyers. There is mere statement that Education Cess so paid by the appellants has been borne entirely by them. It is seen that the Revenue proceeded on the basis of the invoice raised by the appellants which was not refuted by the appellants by any evidence. Therefore, submission made by the learned Advocate cannot be accepted.
6. In view of the above discussion, I find no reason to interfere with the order passed by the Commissioner (Appeals). Accordingly, appeal filed by the appellants is dismissed..
(Dictated & pronounced in the Open Court.) (P.K. DAS) MEMBER (JUDICIAL) RK