Kamalakshi Finance Corporation Ltd vs Commissioner Of Central Excise, ...
- CitationAPPEAL No. E/808/05-Mum
Ratio decidendi
The rule this decision rests on
Where excise duty was paid under protest but the invoices at clearance showed the higher duty rate and that amount was collected from the ultimate consumer, the incidence of duty is treated as having been passed on to the consumer, so the manufacturer cannot be said to have borne it; a refund claim therefore fails on the ground that the claimant has not established non-passing-on of the duty, and the amount may be credited to the Consumer Welfare Fund.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of Order-in-Appeal No. PIII/228/2004 dated 10.12.2004 passed by Commissioner of Central Excise (Appeals), Pune-III)
For approval and signature:
Honble Mr. P.K. Jain, Member (Technical) and Honble Mr. Ramesh Nair, Member (Judicial)
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1. Whether Press Reporters may be allowed to see : No 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 Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
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Kamalakshi Finance Corporation Ltd. Appellant Vs. Commissioner of Central Excise, Pune-III Respondent
Appearance:
Shri Mayur Shroff, Advocate, for appellant Shri V.K. Shastri, Assistant Commissioner (AR), for respondent
CORAM:
Honble Mr. P.K. Jain, Member (Technical) Honble Mr. Ramesh Nair, Member (Judicial)
Date of Hearing: 22.4.2015 Date of Decision: 22.4.2015
ORDER NO
Per: P.K. Jain
Brief facts of the case are that the appellant is a manufacturer of self-adhesive PVC insulation tapes falling under Heading 8546 attracting excise duty @ 15% basic and 5% SED during the period August 1988 to October 1989. However, during the said period, they paid the duty @ 25% basic + 5% SED under protest as classification of the product was ordered under Heading 3919 by the Assistant Commissioner. The matter was finally settled in favour of the appellant and they filed refund claim. The original authority, vide order No. R/16/CEX/2002, sanctioned the said refund claim but transferred the amount to the Consumer Welfare Fund as per the provisions of Section 12C of the Central Excise Act, 1944. Aggrieved by the said order, the appellant filed appeal before the Commissioner (Appeals). The Commissioner (Appeals) vide the impugned order dated 10.12.2004 also rejected the appellants claim on the grounds that the appellant has failed to establish that the amount of excise duty for which refund is being claimed is not borne by them.
2. Heard both sides.
3. We have also perused the records. The only contention of the appellant is that during the period they were paying 25% duty and 15% duty remained the same and this proves that they have not passed on the burden of duty. We are not convinced of the said argument. When the goods were manufactured and cleared, the duty rates indicated in the invoices were 25% and the said amount was collected from the ultimate consumer. Under the circumstances, it cannot be said that the incidence of duty has not been passed on to the ultimate consumer and was borne by the appellant.
4. In view of the above position, we do not find any merit in the appeal. Accordingly the appeal filed by the appellant is dismissed.
(Pronounced in Court)
(Ramesh Nair) Member (Judicial) (P.K. Jain) Member (Technical)
tvu 1 3
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