Customs, Excise and Gold Tribunal - Tamil Nadu
Addisons Paints & Chemicals Ltd. vs Commissioner Of Central Excise, ... on 17 October, 2001
JUDGMENT
Jeet Ram Kait
1. This is an appeal filed by the appellant against Order-in-Appeal No.52/97 (M) dated 7.4.97 passed by CCE (Appeals) Chennai who had rejected their appeal on the ground that though (sic) refund was available to them on merits, but it cannot be paid to them as it is presumed to have been passed on to the actual customers.
2. While reiterating the submissions made in the appeal memorandum, Ld. Counsel Shri V. Balasubramaniam has invited our attention to the Tribunal judgement rendered in the case of CCE Chandigarh v. METRO TYRES LTD reported in 1995 (80) ELT 410 (T) in which it has been laid that in cases where there is a composite invoice and duty has not been shown separately the presumption that duty has been passed on to the customers will not be valid and the appellants have to be paid refund and it cannot be credited to the Consumer Welfare Fund as held by the Ld. Commissioner. This order of the Hon'ble Tribunal has been followed case of the same assessee i.e. Metro Tyres Ltd reported in 1996 (82) ELT 95 (T).
3. Ld. DR Shri A. Jayachandran has reiterated the findings recorded by the Commissioner (Appeals).
4. We have considered the matter carefully and are of the considered opinion that the duty referred to the period is from 1987 to 31.3.1991 which is prior to amendment of Section 11B which was amended on 20.9.91. Since they did not have any obligation to mention the duty amount in the invoices prior to 20.9.91, the same was not mentioned and composite invoices were issued to various customers. In view of above facts and the law as laid down by the Tribunal in the case of CCE v. METRO TYRES LTD mentioned supra, which has been confirmed by the Hon'ble Supreme Court as reported in 1997 (94) A51, we would apply the same ratio to this case also. The Tribunal had held that the burden to prove that incidence of duty was passed on to the customers was discharged by the assessee when assessee's invoices during the material period were showing composite price and duty was not indicated separately. As such, the appellants are entitled for refund which has to be paid to them as incidence of duty has been borne by them alone.
5. Respectfully following the judgement rendered by the Tribunal and confirmed by the Hon'ble Apex Court, we modify the order to the extent indicated above. The Commissioner shall grant consequential relief, if any, as per law. Ordered accordingly.
(Dictated and pronounced in open Court)