Customs, Excise and Gold Tribunal - Bangalore
The Commissioner Of Central Excise ... vs Audithiya Minerals Ltd. on 1 March, 2006
Equivalent citations: 2006(108)ECC10, 2006ECR10(TRI.-BANGALORE), 2006(199)ELT868(TRI-BANG)
ORDER T.K. Jayaraman, Member (T)
1. The Revenue has filed this appeal against Order in Appeal No. 5/2004 dated 13.1.2004 passed by the Commissioner of Customs and Central Excise (Appeals), Guntur.
2. The respondents, manufacturers of agricultural pesticides were availing the benefit of SSI Notification No. 9/2000. The above said Notification was amended on 1.9.2000 and duty at 60% of the normal rate was made applicable up to aggregate value of clearances of Rs. 1 crore in the financial year. As the respondents were not aware of the amendment, they continued to pay at 12.8% after crossing the clearances of Rs. 50 lakhs during the period from 11.10.2000 to 16.12.2000, even though the duty payable was at 9.6% as a result of the amendment. Hence, they claimed the refund of duty excess paid. The Dy. Commissioner granted the refund. Revenue appealed against the decision of the Dy. Commissioner on the ground that there is unjust enrichment. However, the Commissioner (A) following three decisions of the Tribunal rejected Revenue's appeal and passed the impugned order. Revenue is aggrieved over the impugned order on the ground that the order in appeal is contrary to basic facts that assesee's had sold the goods on CUM duty price which included duty.
3. Shri K.S. Bhatt, SDR appeared on behalf of the Revenue and Shri C. Sarabheswara Rao, Consultant appeared for the Respondent.
4. The learned SDR relied on the following decisions of the Tribunal and urged the point that the fact that the price remained the same is not a conclusive evidence to non-passing of duty burden.
(i) Hawkins Cookers Ltd. v. CCE, Mumbai-III 2004 (176) ELT 191 (Tri.-Mumbai.)
(ii) N.C.L. Industries v. CCE, Hyderabad 2004 (177) ELT 1015 (Tri.-Bang.)
5. The learned consultant said that both the lower authorities have interpreted the law correctly and granted the refund. Moreover, the Respondent sold only to dealers who could not take any modvat credit. The price is fixed as per agreement and the change in duty structure would not affect the same, hence there is no question of unjust enrichment.
6. We have gone through the records of the case carefully. When the rate of duty payable was only 9.6%, the respondents had paid 12.8% duty. In other words, during the period when duty at higher rate was paid, the duty actually payable was only at lower rate. In these circumstances, the correct presumption of the Revenue should be that the correct rate of duty payable is passed on to the buyer and not that the higher duty wrongly paid had been passed on. To put it differently, even when the respondent paid duty to the exchequer at the rate of 12.8%, what has been passed on to the buyer is only at 9.6%. Hence, only the lower rate of duty has been passed on to the buyer, whereas the respondent paid more duty to the Government. Hence, the respondent is rightly entitled for the excess duty paid to the Government and which has not been passed on to the buyer. When the respondent realized the mistake, the price remained the same. He started paying only at 9.6% and the duty passed on to the buyer is also the same. From the above discussion, it is clear that the Respondents are entitled for the refund. Hence, we reject the Revenue's appeal and uphold the orders of the lower authorities.
(Pronounced in open Court on 1 Mar 2006)