M/S. Maxwell Industries Ltd vs Cce, Coimbatore
- Case No.Appeal No. E/854/2006
Ratio decidendi
The rule this decision rests on
The Tribunal, on an appeal where the appellant was not present, holds that a refund claim under the Central Excise Act cannot be allowed on the appellant's bare assertion; the appellant bears the onus of establishing, with evidence, that clearances from the depot were made at the lower MRP and not the higher MRP, so that the duty paid on the difference is refundable; and where the record shows the appellant has not discharged that onus, the appropriate course is to remand to the adjudicating authority to give the appellant an opportunity to adduce such evidence and to decide the refund afresh on that evidence, granting it if satisfied.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of Order-in-Appeal No. 67/2006-CE dated 18.7.2006 passed by the Commissioner of Central Excise (Appeals), Coimbatore)
M/s. Maxwell Industries Ltd. Appellant
Vs.
CCE, Coimbatore Respondent
Appearance
None for the Appellant Shri R. Subramaniayam, AC (AR) for the Respondent
CORAM
Honble Shri D.N. Panda, Judicial Member
Date of Hearing / Decision: 13.2.2015
Final Order No. 40155 / 2015
None present for the appellant. Show Cause Notice is very clear in terms of para 4(2) thereof (appearing at page 47 of appeal folder) stating that appellant was to establish that the clearance from depot was made at the lower MRP but not at higher MRP. The said para is reproduced for appreciation for anxiety of Revenue.
(ii) The refund claim of Rs.8,37,144/- out of the total amount of Rs.9,74,986/- covering the period from 22.3.2004 to 30.7.2004 of your 455 invoices vide list attached should not be rejected in terms of Section 11B(1) and Section 12A of Central Excise Act, 1944 for not giving depot/distributors invoices to verify the fact whether you have sold the said goods under lower MRP and to establish that the amount of duty of excise in relation to which the refund claimed was collected from or paid by you and the incidence of duty have not been passed on by you to any other persons and why the said amount if found eligible should not be credited into Consumer Welfare Fund in terms of Section 11B of Central Excise Act, 1944.
2. In absence of the evidence, appellants argument before the authorities below did not get appreciation. Record reveal that appellant has not come out with clean hands to prove that the clearances from the depot were at the lower MRP in order to be entitled to refund of duty paid on difference between higher MRP and lower MRP value. Therefore, appellant is hereby given opportunity to adduce evidence and satisfy learned adjudicating authority on the above proposition. Granting fair opportunity of hearing to the appellant, the authority shall specifically deal with the evidence that may come before him and pass appropriate order. If he is satisfied refund shall be granted.
(Dictated and pronounced in open court)
(D.N. Panda) Judicial Member
Rex
2
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