TMI Blog2008 (8) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... is on them to rebut the presumption under Section 12B ibid, which they have failed to discharge – Refund not allowed – appeal rejected. - E/2484/2003 - A/790/2008-WZB/C-II/(EB), - Dated:- 12-8-2008 - Ms. Jyoti Balasundaram, Vice-President and Shri A.K. Srivastava, Member (T) Shri G.L. Deshpande, Advocate, for the Appellant. Shri H.B. Negi, SDR, for the Respondent. [Order per : A.K. Srivastava, Member (T)]. - The brief facts of the case are that the appellants are engaged in the manufacture of Ayurvedic Medicines falling under Chapter 30 of the Central Excise Act, 1985. One of the items manufactured by the appellants is 'Dant Manjan Lal'. They filed a refund claim for Rs.11,52,125/- before the Assistant Commissioner on the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f excise duty has not been passed on to their buyers. They also pointed out that during the period prior to making payment at higher rate of duty and the period subsequent to the relevant period (when Dant Manjan Lal was granted total exemption), the MRP and the wholesale price of Dant Manjan Lal remained the same thereby substantiating their claim that the incidence of duty has not been passed on to the purchaser of the goods. In this connection, they relied upon the following case laws: (i) ACC Ltd v. CCE, Jamshedpur reported in 2001(130) E.L.T. 277 (Tribunal) = 2000 (40) RLT 703 (CEGAT); (ii) Swarup Fibre Industries Ltd v. CCE, Meerut reported in 2000 (120) E.L.T. 510 (Tri); (iii) Indian Metals Ferro Alloys v. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in clause (d) of proviso to Section 11B(2) of the Central Excise Act, 1944 or the word "buyer" in Section 12B ibid are not construable as referring to the ultimate consumer. 6. The learned SDR reiterated the findings of the lower authorities below. 7. We have examined the position. During the relevant period, the goods falling under Chapter heading 33.06 (which was the classification claimed by the Department) were chargeable to duty under Section 4A of the Act on the basis of the MRP. Accordingly, the clearances of Dant Manjan Lal were made under the Central Excise invoices by adopting the MRP less the abatement of 30% as the assessable value for arriving at the amount of duty payable. We find that the illustrative Central Excise i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acturer and from which it could be inferred that the ultimate buyer had been asked to bear the burden of the full extent of the duty initially paid by the manufacturer (para 6 of the judgment). However, in the case before us the evidence of passing on the incidence of duty to the ultimate consumer is very much there inasmuch as the goods are printed with MRP and sold to the ultimate consumer on the MRP, which is inclusive of Central Excise duty. It is, therefore, evident that the incidence of duty has been passed on to the ultimate consumer. Had the ultimate consumer bought the goods at a price MRP minus the Central Excise duty then only it could have been inferred that the incidence of duty has not been borne by him. However, this is not t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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