TMI Blog2005 (2) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/- and Rs. 7,250/- after 1-3-2000. This variation is on account of the change in the duty structure. The selling price for both the periods is Rs. 2,99,046/-. The loss in the first period is Rs. 74,031/- and after 1-3-2000 it is Rs. 75,031/- in respect of each vehicle. When we see the magnitude of loss and the duty incidence on tyres and tubes, we find that the difference is very huge. In other words, the appellants could not only not pass on the burden of duty on the tyres and tubes but also not recover other elements of cost. On the basis of the above figures it would be very difficult, nay impossible to hold that the duty incidence has been passed on to the buyers. In our view, Revenue's contention does not appear to be correct. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... get 2000. However, the department took nearly one year for issue of CT-2 Certificate. Therefore the appellant was procuring Tyres for the period from 1-3-2000 to 31-1-2001 by paying all duties including the SED. The total SED paid by the appellant works out to Rs. 60,77,117/-. The CT-2 certificate was obtained in the month of January 2001, therefore the appellants filed a refund claim with the Original Authority. The Original authority rejected the refund on two grounds, namely non-adoption of Chapter X Procedure and unjust enrichment. The Commissioner (Appeals) held that the appellants are entitled to the refund but the same cannot be given to them as they had not shown that they have not passed on the duty burden to the buyers of the vehi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficient to show that the duty burden is not passed on to the customers. She further urged that the law makes a presumption that the duty burden is normally passed on to the buyer by the manufacturer and it is for the manufacturer to show by proper evidence that the duty burden is not passed on to the buyers. 6. We have gone through the rival submissions. The entitlement of refund on merits to the appellants is not in dispute. The only point to be considered is whether the appellant has passed on the burden of duty to the buyer or not. If it can be shown by the appellant that they had not passed on the incidence of such duty to any other person then they will get the relief. In our view, the fact of unjust enrichment can be decided on the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and profit/loss are very relevant factors in deciding whether duty of excise has been passed on or not. It is not possible to enunciate a universal principle applicable to all situations. Each case has to be decided on the basis of the information available. 7. As far as the present appeal is concerned, the appellant has produced the cost analysis certificate by the Chartered Accountant. We are reproducing the cost analysis in respect of 'Family saloon model'. COST ANALYSIS Prior to 1-3-2000 After 1-3-2000 Gross Value Cenvat Net Cost Gross Value Cenvat Net Cost Material Cost Indigenous 1,48,506 23,761 1,24,745 1,48,506 23,761 1,24,745 (Other than Tyres cost) - - - Tyres Tubes 8,250 2,000 6,250 8,250 1,000 7,250 Imports 1,89,517 30,910 1,58 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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