Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of Customs And Central ... vs Kores (India) Ltd. on 18 February, 2005
Equivalent citations: 2005(185)ELT58(TRI-MUMBAI)
ORDER Moheb Ali M., Member (T)
1. This application for stay arose out of the order of Commissioner (Appeals). In the impugned order the Commissioner modified the order of the lower authority who held that excess duty was paid and therefore refundable but credited the amount to Consumer Welfare Fund on the ground that the incidence of duty had been passed on to the buyers. The Commissioner in the impugned order held that the refund should be sanctioned and disbursed to the assessee. The Revenue is aggrieved by this order. Hence the application for stay.
2. On the issue of unjust enrichment the Commissioner (A) observed that in the case of depot sales the assessee was charging composite sales and the amount of excise duty was not indicated separately. He held that when composite sales price was charged and the sale price remained constant irrespective of the amount of duty paid by the assessee during different periods, the duty was not passed on to the customers in respect of sales from depot.
3. The Revenue's contention is that even in respect of sales form factory gate assessee was issuing commercial invoices along with Central Excise invoices and the said commercial invoices indicated composite prices. The composite price at the factory gate and that charged from the depot is the same. Therefore the conclusion drawn by the Commissioner that in the case of composite sales price charged by the assessee from his depot, the incidence of duty was not passed on to the customers is not correct.
4. Heard both sides.
5. The burden to prove that incidence of duty was not passed on to the Customer is on the person who claims the refund. Such burden is not discharged by merely stating that the prices of goods remained constant before and after payment of excess duty. Prima facie it appears that the Commissioner was wrong in holding that the respondent herein has discharged the burden cast on him. We find that the department has made out a strong prima facie case in its favour we accordingly stay the operation of the impugned order during the pendency of this appeals.
(Operative part pronounced in Court)