TMI Blog2014 (7) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. 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. - Appeal Nos: E/2740 & 2741/2004 - Final Order Nos. A/188-189/2014-WZB/C-II(EB) - Dated:- 20-3-2014 - P R Chandrasekharan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent had sold the finished products i.e., blankets, shawls etc. below cost as certified by the Chartered Accountant, the respondent could not have passed on the incidence of duty burden to the buyers and, therefore, the respondent had crossed the bar of unjust enrichment. The appellate authority also allowed the claim of the respondent on the ground that the reversal of credit taken on the inputs, though at a latter date, is a reasonable compliance to Notification No. 67/95 and, therefore, the respondent is eligible for the benefit of exemption under Notification 67/95. Aggrieved of the same the Revenue is before us. 3. The learned Addl. Commissioner (AR) appearing for the Revenue submits that as per the Notification 67/95-CE dated 16/03/1995 benefit under the said Notification would be available only if the inputs are used in or in relation to the manufacture of final products which are dutiable. In the present case, the final products manufactured by the respondent were exempt from duty and, therefore, benefit of Notification 67/95 would not apply. However, the said Notification was amended vide Notification 35/2001 dated 29/06/2001 wherein it was provided that if the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the sales records, balance sheets and other related documents that the incidence of duty has been borne by the respondent and not passed on. 3.3 Accordingly, it is prayed that the impugned order be set aside and the appeals allowed. 4. The learned Counsel for the respondent, on the other hand, submits that the respondent has reversed the credit taken on the inputs used in the manufacture of yarn captively consumed, though subsequently. Such subsequent reversal would entitle the respondent to the benefit of Notification 67/95 as held by this Tribunal in the case of Godavari Sugar mills Ltd. vs. Commissioner of Central Excise, Belgaum 2007 (212) ELT 234. Reliance is also placed on the decision of this Tribunal in the case of Commissioner of Central Excise, Calcutta vs. Panihati Rubber Ltd. 2004 (172) ELT 310 affirmed by the hon'ble apex Court reported in 2006 (202) ELT 41 (SC) wherein it was held that bar of unjust enrichment would not apply when the duty is refunded under Settlement. It is also the respondent's contention that they had submitted detailed calculations with regard to the reversal of credit before the refund sanctioning authority wherein they had shown ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the credit in respect of duty paid on inputs on which credit has been taken which was used in the manufacture of exempted final products for the whole period. 5.2 We further notice that 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. It is a settled position in law that all claims of refund under Section 11B of the Act has to be granted after satisfying that the bar of unjust enrichment has been crossed and the incidence has been borne by the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in all the relevant documents the amount of such duty which will form part of the price at which the goods are to be sold, while Section 12B raises a presumption of law that until the contrary is proved, every person who has paid the duty of excise on any goods shall be deemed to have passed on the full incidence of such duty to the buyer of such goods. Since the presumption created by Section 12B is a rebuttable presumption of law - and not a conclusive presumption - there is no basis for impugning its validity on the ground of procedural unreasonableness or otherwise. This presumption is consistent with the general pattern of commercial life. It indeed gives effect to the very essence of an indirect tax like the excise duty/customs duty. In this connection, it is repeatedly pointed out by the learned Counsel for the petitioners-appellants that the levy of duty is upon the manufacturer/assessee and that he cannot disclaim his liability on the ground that he has not passed on the duty. This is undoubtedly true but this again does not affect the validity of Section 12A or 12B. A manufacturer who has not passed on the duty can always prove that fact and if it is found that duty was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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