Custom, Excise & Service Tax Tribunal
M/S. Madhav Marbles & Granites Mills Ltd vs Cce, Salem on 1 February, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
E/352/2004 & E/353/2004
(Arising out of Order in Appeal No. 76 & 77/2004 CE (SLM) dated 05.02.04 passed by the Commissioner of Central Excise (Appeals), Salem).
For approval and signature
Honble Ms. JYOTI BALASUNDARAM, Vice President
Honble Dr. CHITTARANJAN SATAPATHY, Technical Member
_________________________________________________________
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 should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether the Honble Member wishes to see the fair :
copy of the Order.
4. Whether order is to be circulated to the :
Departmental Authorities? ____________________________________________________________
M/s. Madhav Marbles & Granites Mills Ltd. : Appellant
Vs.
CCE, Salem : Respondent
Appearance Shri M.Karthikeyan, Adv., for the appellants Shri C. Rangaraju, SDR, for the respondents CORAM Ms. JYOTI BALASUNDARAM, Vice President Dr. CHITTARANJAN SATAPATHY, Technical Member Date of hearing : 01.02.2011 Date of decision : 01.02.2011 ORDER No._____________ Per: Dr. Chittaranjan Satapathy, Heard both sides.
2. Shri M. Karthikeyan, Ld. Advocate, appearing for the appellants states that the appellants have borne the incidence of duty themselves and this has been demonstrated before the lower appellate authority by producing copies of the invoices, which shows that the appellants have not changed the price during the periods they were paying lesser and higher duty. He states that when the price is not varied, the bar of unjust enrichment is not attracted as per the ratio of the decision of the Honble Calcutta High Court in the case of CCE, Calcutta-III Vs. Panihati Rubber Ltd. 2004 (172) ELT 310 (Cal.).
3. However, we find that a three judges Bench of the Honble Supreme Court in the case of CCE, Mumbai-II Vs. Allied Photographics India Ltd. 2004 (116) ELT 3 (S.C.), has held that uniformity in price does not lead to inevitable conclusion that the incidence of duty has not been passed on to the buyer as such uniformity may be due to various factors. We also find that the review petition against the said decision of the Honble Supreme Court in the case of Allied Photographics India Ltd. (supra) has been dismissed by the Honble Supreme Court vide Allied Photographics India Ltd. Vs. Commissioner 2004 (173) ELT A191 (S.C.). As such, the ground taken by the appellants that the principle of unjust enrichment does not apply to the case where the price remains uniform is not tenable.
4. The Ld. Counsel Shri M. Karthikeyan states that the appellant should be given a second chance to go before the original authority to demonstrate the Balance Sheet and Chartered Accountants Certificate that the impugned amount is shown as receivables from the Government and that the differential duty amount has not been passed on to the buyers.
5. Accepting the prayer, we set aside the impugned order and remand the matter to the original authority for giving another opportunity to the appellants to prove that they have not passed the extra burden to anyone else. The appellants shall be given adequate opportunity of hearing before passing fresh orders.
6. The appeals are thus allowed by way of remand.
(Operative part of the Order pronounced in the open Court on 01.02.11)
(Dr. CHITTARANJAN SATAPATHY) (JYOTI BALASUNDARAM)
TECHNICAL MEMBER VICE PRESIDENT
BB
4