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Mr. Technological Institute Of Textile ... vs Commissioner Of Central Excise on 4 December, 2006
cites
Gujarat State Fertilizers And ... vs C.C.E. on 22 September, 1998
5. Under Section 12B of the Act, it has been provided that every person who had paid the duty of excise on any goods shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods. The provision does not make any distinction on the basis of time when the duty is paid namely, whether it is paid at the time of clearance or thereafter. However, reliance has been placed on Division Bench decision of the Tribunal in Gujarat State Fertilizers & Chemicals Ltd. v. CCE, Vadodara reported in 2005 (67) RLT 714 (CESTAT-Mum), in which the Tribunal relied upon the earlier decision in Gwalior Oil Mills v. CCE, Bhopal reported in 2002 (52) RLT 648 (CEGAT-Del), wherein it was held that the presumption under Section 12B, that incidence of duty has been passed on to the buyers, will not be attracted when the payment of duty is paid subsequent to clearance of goods.
Ester Industries Limited vs Cce., Meerut-Ii on 7 June, 2001
In view of the decisions of the Tribunal in Easter Industries v. CCE (supra), and other cases following the decisions of Tribunal, including Gwalior Oil Mills, on which reliance has been placed, the impugned order of the Commisioner (Appeals) applying the presumption under Section 12B against the assessee is required to be set-aside. However, the matter is required to be examined afresh without the aid of such presumption, under the provisions of Section 11B of the Act, in the light of the above. The adjudicating authority should, therefore, examine whether the requirement of Section 11B that, "...the incidence of such duty had not been passed on by him to any other person", is satisfied or not without the aid of any presumption under Section 12B of the Central Excise Act. The impugned order is, therefore, set aside and the matter is remanded to the adjudicating authority for a fresh decision in accordance with the law and in the light of the observations made in this judgment.
Easter Industries Ltd. vs Commissioner Of Central Excise on 26 August, 1999
The Tribunal referred to the earlier decision in Easter Industries v. Commissioner reported in 1999 (35) RLT 696, in which it was held that where the duty is paid by making debit entries in PLA subsequent to date of clearance of goods, presumption under Section 12-B of Central Excise Act, that incidence of duty has been passed on to the buyer will not be attracted.
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