Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of C. Ex. And Customs vs Besta Cosmetics Ltd. on 24 January, 2003
Equivalent citations: 2003(160)ELT728(TRI-MUMBAI)
ORDER G.N. Srinivasan, Member (J)
1. Ld. Counsel appearing for the assessee-respondent does not object to the condonation of the delay in filing the Appeals Nos. E/3468 and 3469/02, hence the delay is condoned.
2. The question involved in these three appeals are whether the assessee-respondent is entitled to the refund of the amount of Rs. 36,30,350/-, Rs. 43,61,900/- and Rs. 35,07,858/-.
3. The assessee-respondent is engaged in the manufacture of tooth paste and tooth powder falling under Chapter sub-heading 3306.00 of the Schedule to the Central Excise Tariff Act. The products were being sold under two different brand names, namely "PROMISE" owned by M/s. Balsara Hygiene Products Ltd., and "BABOOL" owned by the assessee-respondent. The price lists were filed by the assessee-respondent in terms of erstwhile Rule 173C of the Central Excise Rules before the authorities from time to time declaring the value of the said goods for the purpose of assessment. The Department contested the declared prices on the grounds that they do not consider the advertisement/sales promotion charges incurred by the buyers viz. Balsara Hygiene Products Ltd., in respect of products sold under the brand name of "BABOOL". As far as product "PROMISE" is concerned, the Department wanted to take the price of Balsara Hygiene Products Ltd., for purpose of assessment. The Tribunal by its Order No. 1099/1998-A, dated 14-8-1998 [1999 (109) E.L.T. 237 (Tribunal)], in the appeal filed by the assessee-respondent held that there is no justification to include the expenses for advertisements of M/s. Balsara Hygiene Products Ltd., in the assessable value of tooth paste sold under the brand name BABOOL. As far as the product PROMISE is concerned, the Collector (Appeals) vide his order dated 20-7-1994 held that the price at which the products under the brand name "PROMISE" is sold to Balsara Hygiene Products Limited is the normal price under Section 4 of the Central Excise Act, 1944. The Tribunal by its Order No. 1854/99-WZB/C-I, dated 19-7-1999 [2000 (116) E.L.T. 293 (Tribunal)] dismissed the appeal of the department against the said order dated 20-7-1994 of the Collector (Appeals).
4. The above proceedings resulted in the refund claims filed by the assessee-respondent for the above three amounts. By three separate orders, the Deputy Commissioner of Central Excise rejected all the three refund claims. The Deputy Commissioner in his one of the orders being Order No. 36/DC/REF/2001-02/Vapi II, dated 21-5-2001 has held as follows :
"In their written submission dt. 22-1-2000, the assessee stated that he has submitted documents viz; Gate pass, invoices, statements RT 12 Return, RG23A Part II and PLA etc. from which it is abundantly clear that the excise duty has not been recovered from their customers. I do not agree with the contention of the assessee, as one of these documents indicate the actual recovery done by assessee from the customers. They have also submitted the certificate of their Chartered Accountant that excess central excise duty has not been recovered by them from their customers. However, in the para of certificate the Chartered Accountant has qualified it by stating that, it is on the basis of information and explanation given to them by the management of M/s. Besta Cosmetics Ltd. Thus even this certificate is not complete.
The assessee has submitted the ledger of relevant periods on 10-5-2001, but has failed to correlate the money receipt of the individual invoices raised by them and have failed to establish that the burden of duty has not been passed on directly or indirectly to any other person. They have further failed to establish that duty incidence has not been passed in further to customers of M/s. Balsara Hygiene Products Ltd."
5. Against these three orders three appeals were filed by the assessee-respondent. The Commissioner (Appeals) by his common order dated 24-4-2002 allowed all the three appeals. The Commissioner (Appeals), at page 10 of the order, after referring to the various documents filed/produced by the assessee-respondent held that the assessee's plea has some force. In fact at page 10 of the order-in-appeal, Commissioner (Appeals) has held -
"I have seen the chart referred to and to cite an example, I would refer to the chart for the financial year 1992-93. In the said chart against Invoice No. 4A0053 dated 3-11-92 having an invoice value of Rs. 5,13,611 and 28 paise, the duty charged to the party has been indicated as Rs. 63,180/- + Rs. 9,477/- whereas the duties paid under protest were Rs. 89,082/- + Rs. 13,362/-. This is an example which shows that the appellant's contention has some force that the duty paid by them under protest was higher than the duty recovered by them. In view of the above, it was ideally a case which should have been remanded back for verifying the documents with reference to the plea of unjust enrichment. However, as I cannot remand the case back, records for one year that is April'93 to March'94 were called and verified as a test check and got cross verified with the records available with the appellants which they have also submitted before the adjudicator."
6. Ld. DR. reiterates the grounds of appeal and in particular ground Nos. 4 and 5 which read as follows :-
"4. The Commissioner (A) has considered the CA's certificate to be an expert opinion for disallowing the clause of unjust enrichment. The Hon'ble CEGAT, in the case of Commissioner of Customs v. Eltech Enterprises reported in 1999 (112) E.L.T. 877 (Tri.) has held that the CA's certificate is not sufficient and it cannot be accepted as a sole document to satisfy the Department that the duty has not been passed on to any other person. The Tribunal had set aside the order of Commissioner (A) and allowed Departmental appeal.
5. In the case of Mafatlal Industries Ltd. v. UOI reported in 1997 (89) E.L.T. 247 (S.C.), the Supreme Court has held that any person paying duty under protest has to follow the procedure by rule and once he does so, it shall be taken that he has paid the duty under protest. In the instant case, the assessee has not followed the procedure prescribed by the rule and, therefore, it cannot be taken as a duty paid under protest."
7. We have heard the arguments of ld. DR Shri Chopra as well as the Counsel for the assessee-respondent Shri Prakash Shah. It is clear from the findings of Commissioner (Appeals), as reflected in page 10 of the order extracted above, that the premise on which the order-in-original is passed by the adjudicating authority rejecting the refund claims is wrong. In fact, the order impugned in these appeals, in our view, has clearly found after due verification of documents by the Superintendent that the duty paid by the assessee-respondent under protest was higher than the duty recovered by them. This fact is not disputed by the Revenue in the present appeals. Moreover, the certificate given by the assessee's Chartered Accountant has been properly dealt with by the Commissioner (Appeals) at page 11 of his order. It is a case of the disposal of the appeal by the appellate authority after due application of mind and on the basis of the appreciation of the evidence before it. The Commissioner (Appeals) has not merely relied upon the certificates of Chartered Accountant. He also found that the certificates of Chartered Accountant has been found duly supported by the documents such as excise invoice, commercial invoice, extract of ledger, etc., produced by the assessee-respondent to show that the amount of duty of excise of which refund is claimed by the assessee-respondent is paid by them and incidence of such duty had not been passed on by them to any other person.
8. As far as limitation is concerned the same has been dealt with by the appellate authority in paragraph 14 of its order. It clearly shows that the assessee-respondent has made necessary endorsement of payment of duty 'under protest' on all the GPIs, RG 23A Parts I and II, PLA, RT 12 returns, etc. We concur with his views that there is no provision to make endorsement on commercial invoices under Rule 253B. The Commissioner (Appeals) is right in holding that claim of the assessee is not barred under Section 11B of the Act. The grounds of appeal does not merit any force in view of the clear findings of the appellate authority. We, therefore, find the appeals of the Department lack merit and dismiss the three appeals.