Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2014 (7) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2014 (7) TMI 401 - AT - Central ExciseRefund - unjust enrichment - payment of duty initially on captive consumption of intermediate product which were exempt from duty - Held that:- refund is claimed consequent to availment of benefit under Notification 67/95. The said Notification provided that the benefit of exemption would be available when goods are captively consumed in the manufacture of exempted final products only when no CENVAT credit of the duty paid on the inputs used in the manufacture of intermediate products arising in the manufacture of final products is taken. In the present case, CENVAT credit has been availed by the respondent in respect of synthetic waste and polyester tops. From these raw materials, the respondent has made the yarn of waste wool was captively consumed in the manufacture of blankets, shawls, etc. which were exempt from payment of duty. Except for the costing statement of the product which indicates that they have sold the final products below cost, there is no evidence to indicate that the incidence of duty has been borne by the respondent. In the statutory books of accounts and the balance sheets maintained by the respondent, the amount claimed as refund is not shown as ‘claims receivable' from the department. The respondent has clearly admitted to the fact that the said amount of refund claimed was treated as ‘expenditure' and taken to the profit & loss account. If the amount is taken to the profit and loss account, it signifies that the respondent has adjusted the amount in their income while arriving at the net profits thereby implying that the incidence has been passed on to the third parties. Chartered Accountant's certificate is not a conclusive proof of having not passed on duty of incidence to the customers. It is incidence of duty and not the duty as such which is required to be shown to have not being passed on from the sale records, balance sheets and other related documents - Following decision of Crompton Greaves Ltd. (2009 (4) TMI 490 - CESTAT, MUMBAI) and Union of India vs. Solar Pesticide Pvt. Ltd. [2000 (2) TMI 237 - SUPREME COURT OF INDIA] - Decided in favour of Revenue.
|