Shree Ram Textiles & Processing Mills ... vs Commissioner Of Central Excise,Mumbai ...

(Arising out Order-in-Appeal No. BR(05)MV/2013 dated 07.02.2013 passed by the Commissioner of Central Excise (Appeals), Mumbai I)

For approval and signature: Honble Mr. P.K. Jain, Member (Technical)

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 Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy Yes of the Order?

4. Whether Order is to be circulated to the Departmental Yes authorities?

Shree Ram Textiles & Processing Mills (I) P. Ltd. Appellant

Vs.

Commissioner of Central Excise,Mumbai V Respondent

Appearance:

Shri Anirban Tripathy, Advocate for the appellant Shri N.N. Prabhudesai, Supdt. (AR) for the respondent

CORAM:

Honble Mr. P.K. Jain, Member (Technical)

Date of hearing : 13.02.2015 Date of decision : 13.02.2015

O R D E R No:..

Per: P.K. Jain:

The brief facts of the case are that appellants were engaged in the manufacture of processed fabric. A compounded levy scheme was introduced in respect of fabric processing with effect from 16.12.1998. Accordingly, appellant started paying duty under the compounded levy scheme. There was dispute between the appellant and revenue about the length of the chamber for the purpose of computation of the duty. Initially appellant paid the duty as per his computation but later on paid the differential duty demanded by the revenue. However, matter was adjudicated before the appropriate authority and finally the matter was settled in favour of the appellants. Appellant consequently filed refund of the extra amount of duty paid. Initially, the said amount though sanctioned but was transferred to the Consumer Welfare Fund. The appellant filed appeal before the Commissioner (Appeals) who set aside the order and directed that the refund should be given to the appellant as it was held that the doctrine of unjust enrichment is not applicable in respect of goods cleared under the compounded levy scheme. Accordingly, the appellant was paid the said amount. However, revenue filed appeal against the order of Commissioner (Appeals) before this Tribunal. This Tribunal dismissed the appeal of the revenue. Revenue took the matter to the Hon'ble High Court of Bombay. The Hon'ble High Court of Bombay vide order dated 08.12.2010 in Central Excise Appeal no. 55 of 2006 set aside the order of the Tribunal and directed the original authority to decide the matter afresh in accordance with law. The Hon'ble High Court also noted that the issue is now settled by the Larger Bench of the Tribunal in the case of Shivagrico Implements Ltd. 2006 (199) ELT 55 (Tri-LB). Consequent to the said order of the Hon'ble High Court the original authority confirmed the demands relating to the refund claim which was already granted to the appellant as the appellant in spite of giving large number of opportunity failed to produce any evidence to prove that burden of duty has not been passed on to the consumer. Appellant filed the appeal against the said order before the Commissioner (Appeals). The Commissioner (Appeals) vide his order dated 11.02.2013 dismissed the appeal of the appellant. Aggrieved by the said order, appellant is before this Tribunal.

2. Heard the ld. counsel for the appellant.

3. The appellants main contention is that he was collecting duty from the customer only corresponding to the admitted amount. In fact they have paid the differential duty later on from their own funds and therefore the appellant could not have recovered the differential duty from the customer. On a query from the bench about the dates of payment the initial duty and differential duty, Ld. Counsel stated the matter being very old and since all the documents have been washed away in flood in 2005, they are not in a position to provide the detail. Ld. counsel was also asked whether there is any evidence such as balance sheet etc. to prove that the said amount was not considered as expenditure and is still being considered receivable from the government. Ld. counsel stated that no such document is available and all the documents have been washed away.

4. Ld. AR, on the other hand, stated that doctrine of unjust enrichment is applicable in their case as held by the Hon'ble Supreme Court in various cases including Solar Pesticides 2000 (116) ELT 401 (SC) and Sahakari Khand Udyog 2005 (181) ELT 328 (SC). He further stated that from the impugned order it is clear that they were not showing the excise duty separately in the invoice raised by them to the customer and the prices shown in the invoices were cum duty price and under the circumstances, it cannot be said that they have not passed on the duty to the customer.

5. I have considered the submissions.

6. The issue to be decided in the case is whether the appellant has passed on the burden of excise duty to their customers. It is an admitted fact that appellant was not indicating the excise duty separately in the invoice and the invoice were indicating the cum duty price. The appellant has not been able to produce any accounting document such as balance sheet etc. to prove that the said amount has been paid by them separately and is being considered as receivables even now. In the absence of any evidence the claim of the appellant that they have not passed on the burden of duty to the consumer is a bald statement and cannot be accepted.

7. Under the circumstances, appeal is dismissed.

(Operative part pronounced in Court)

(P.K. Jain) Member (Technical)

//SR

5