|
Advanced Search Options
Case Laws
Showing 221 to 240 of 781 Records
-
2009 (12) TMI 850
Demand of service tax - Import of service tax - Supreme Court dismissed appeal where High Court [2008 (12) TMI 41 - BOMBAY HIGH COURT] held that Provisions of Rule 2(1)(d)(iv) can not create any tax liability which is not authorized by law. Before insertion of section 66A with effect from 18-4-2006, there was no authority to levy service tax on Import of service. Explanation below section 65(105) did not give any authority to levy service tax on import of services.
-
2009 (12) TMI 848
Issues:
- Appeal against order restoring penalty under TNGST Act read with CST Act
- Interpretation of statutory provisions regarding penalty under Section 12(3)(b) of TNGST Act
- Application of legal precedent set by Division Bench in Appollo Saline Pharmaceuticals case
Analysis:
The judgment by the Madras High Court pertains to a tax case appeal filed by the assessee against the order of the Joint Commissioner dated 25.05.1998, which restored the penalty under Section 12(3)(b) of the TNGST Act read with Section 9(2-A) of the CST Act. The counsel for both the department and the assessee referred to the Division Bench decision in the case of Appollo Saline Pharmaceuticals, which favored the assessee by ruling that the penalty under Section 12(3)(b) cannot be imposed for assessments made under Section 12(1) of the TNGST Act.
In this specific case concerning the assessment year 1993-94, the penalty was levied solely for the assessment made under Section 12(1) of the TNGST Act. The court highlighted the legislative intention behind the statutory provisions, emphasizing that penalties are applicable only in cases of best judgment assessments made on estimates and not solely based on the accounts provided by the assessee. The court cited that assessments made on the basis of accounts, without reliance on other materials, do not fall under Section 12(1) and, therefore, are not subject to penalties under Section 12(3).
Based on the legal precedent and interpretation of the statutory provisions, the court concluded that the order of the Joint Commissioner restoring the penalty was not in line with the law as established by the Division Bench decision and the legislative intent. Consequently, the tax case appeal was allowed, and no costs were imposed. The judgment reaffirmed the principle that penalties under Section 12(3) are not applicable to assessments made solely on the basis of accounts, setting aside the penalty for the relevant assessment years in question.
-
2009 (12) TMI 847
It is clear that in this case efforts to mislead the authorities and the courts have transmitted through three generations and the conduct of the appellant and his son to mislead the High Court and this Court cannot, but be treated as reprehensible.
They belong to the category of persons who not only attempt, but succeed in polluting the course of justice. Therefore, we do not find any justification to interfere with the order under challenge or entertain the appellant's prayer for setting aside the orders passed by the Prescribed - Appeal is dismissed.
-
2009 (12) TMI 846
Issues Involved:
1. Demand on CPS-DFA sold to HLL.
2. Demand on DFA transferred to HLL.
3. Demand on by-products of the oil, other than CPS.
4. Demand barred by limitation.
5. Revenue neutrality.
Issue-wise Detailed Analysis:
1. Demand on CPS-DFA sold to HLL:
The Revenue contended that there is no difference between DFA and CPS-DFA and invoked the cost price of non-CPS-DFA for CPS-DFA sold to HLL, alleging under-valuation. The assessee argued that CPS-DFA is used in the manufacture of soaps, and duty paid on CPS-DFA was taken as credit, making it a revenue-neutral exercise. They cited several judgments to support their claim of revenue neutrality and the availability of captive consumption exemption under Notification No. 67/95-C.E. The Tribunal found that the whole exercise is revenue neutral and the exemption for captive consumption was available, thus holding the demand of Rs. 1,73,89,261/- as unsustainable.
2. Demand on DFA transferred to HLL:
The demand of Rs. 34,82,867/- was made by loading the sale value of by-products to the sale price of other DFA. The assessee argued that this would lead to duplication of demand and that the differential duty paid on finalization of provisional assessment should be considered. The Tribunal found that the transaction value was not acceptable due to discrepancies in the generation of by-products. However, they noted the need to reconsider all issues and arrive at a correct transaction value, thus remanding the matter to the original authority for fresh consideration.
3. Demand on by-products of the oil, other than CPS:
The demand of Rs. 24,50,516/- was made on the ground that non-CPS by-products were transferred at a lower price than CPS by-products. The assessee contended that CPS by-products mean CPS content in each by-product, and non-CPS by-products are the true by-products. The Tribunal upheld the Revenue's contention that CPS by-products mean CPS by-products, not just the CPS content. However, they found the need to reconsider the quantification of duty, especially regarding the aggregation of sale values and the different characteristics of each by-product. The matter was remanded to the Commissioner for fresh consideration, with no penalty under Sec. 11AC and extended period not being invoked.
4. Demand barred by limitation:
The assessee argued that major portions of the demand were barred by limitation as extended periods were not invokable due to no suppression or mis-statement. They cited several judgments to support their claim. The Tribunal did not explicitly address this issue in their final decision but considered the arguments in their overall assessment.
5. Revenue neutrality:
The assessee consistently argued that the entire exercise was revenue-neutral since whatever duty was paid was available as credit to the recipient units. They cited several judgments to support this contention. The Tribunal acknowledged the revenue-neutral nature of the transactions, especially in the case of CPS-DFA, and used this as a ground to hold the demand unsustainable.
Conclusion:
The Tribunal set aside the demand of Rs. 1,73,89,261/- on CPS-DFA sold to HLL due to revenue neutrality and the availability of captive consumption exemption. The demands on DFA transferred to HLL and by-products of the oil, other than CPS, were remanded to the Commissioner for fresh consideration, with instructions to reconsider all issues and quantifications. The appeal was partly allowed by way of remand.
-
2009 (12) TMI 845
Issues:
- Demand of Central Excise Duty on old and used machinery
- Demand of Cenvat credit for inputs purchased
- Imposition of penalty under Cenvat Credit Rules and Central Excise Rules
Analysis:
Issue 1: Demand of Central Excise Duty on old and used machinery
The appellant, a manufacturer of paper, sold old paper machinery along with used transformers. The Department demanded Central Excise Duty amounting to Rs. 5,36,800, contending that duty should have been paid at the time of clearance of old machinery. The appellant argued that no Cenvat credit had been availed for the old machinery purchased in 1980-81. The Tribunal held that the Department failed to provide evidence showing Cenvat credit had been taken. As per Rule 3(4) of Cenvat Credit Rules, duty is payable only if credit had been taken, which was not proven in this case. Therefore, the demand of Rs. 5,36,800 was deemed unsustainable.
Issue 2: Demand of Cenvat credit for inputs purchased
The Department alleged that the appellant issued debit notes for inputs purchased, indicating short receipt and demanded Cenvat credit of Rs. 3684. The appellant claimed the debit notes were for cash discounts, not short receipt. The Tribunal noted that the Department's presumption of short receipt without evidence was insufficient to deny Cenvat credit. As there was no concrete evidence of short receipt, the demand of Rs. 3684 for Cenvat credit was considered unsustainable.
Issue 3: Imposition of penalty under Cenvat Credit Rules and Central Excise Rules
The Asstt. Commissioner imposed a penalty of Rs. 5,40,484 under Cenvat Credit Rules and Central Excise Act. On appeal, the Commissioner (Appeals) upheld the penalty. However, the Tribunal found the penalty unsustainable due to the lack of substantiated claims regarding Cenvat credit and short receipt of inputs. Therefore, the penalty was set aside, and the appeal was allowed.
In conclusion, the Tribunal ruled in favor of the appellant, setting aside the demands for Central Excise Duty and Cenvat credit, along with the penalty imposed. The judgment emphasized the importance of concrete evidence and proper substantiation in tax-related claims and penalties under Cenvat Credit Rules and Central Excise Rules.
-
2009 (12) TMI 844
Refund claim - whether the education cess and higher education cess which was paid along with excise duty in terms of N/N. 20/2007-C.E., dated 25-4-2007 as amended are also refundable along with excise duty paid under the said Notification? - Held that:- Notification No. 20/2007-C.E., dated 25-4-2007 is pari materia to Notification No. 56/2002 dated 14-11-2002.
Held that:- The Tribunal in the case of Jindal Drugs Ltd. & Others [2009 (8) TMI 812 - CESTAT, NEW DELHI] held that the refund of education cess and higher education cess under Notification No. 56/2002 dated 14-11-2002 is not admissible.
Appeal dismissed - decided against appellant.
-
2009 (12) TMI 843
Valuation - determination of assessable value in respect of the imports made through different Bills of Entry - Held that: - In absence of show cause notice, no head or tail could be made out. We do not find any recorded order passes in adjudication - Finding that Revenue has not brought out any material for contradiction, we are not inclined to interfere with the order passed by the learned first Appellate Authority - appeal rejected - decided against Revenue.
-
2009 (12) TMI 842
Issues involved: Import of Welding Tools and Spare parts, provisional clearance, refund claim of RD, unjust enrichment, appeal rejection.
In the present case, the appellants imported Welding Tools and Spare parts which were provisionally cleared pending valuation by the SVB of the department. Subsequent to the final SVB order, the appellants filed a refund claim of the RD. The adjudicating authority sanctioned the refund claim but credited it to the Consumer Welfare Fund due to failure to prove non-passing of burden to consumers. The appellants appealed before the Commissioner (Appeals) who rejected the appeal, leading to the current appeal.
Unjust Enrichment Issue:
The learned CA for the appellants argued that it is not a case of unjust enrichment but a recurring deposit paid provisionally, seeking refund upon assessment. They contended that this deposit does not need to be recovered from customers, hence unjust enrichment should not apply.
Observations and Decision:
Upon review, the impugned order highlighted that the amount claimed as refund was not shown as 'recoverable' in the balance sheet but as part of 'expenditure' under 'consumption cost'. The appellants failed to provide evidence to negate the presumption under section 28D. It was noted that the refundable amount had been included in the cost of production, indicating the passing on of the burden to consumers. Consequently, the bar of unjust enrichment was found applicable, and the appellants could not prove non-passing of the payment burden.
Final Decision:
The appellate tribunal upheld the impugned order, rejecting the appeal as no infirmity was found. The decision was pronounced in court, affirming the rejection of the appeal against the refund claim due to the failure to establish non-passing of the payment burden to consumers.
-
2009 (12) TMI 841
The Appellate Tribunal CESTAT NEW DELHI dismissed the Revenue's appeal regarding alleged improper use of gypsum in cement manufacturing. The Tribunal found no evidence of clandestine clearance of cement and upheld the Commissioner's decision. Cross objection was also disposed of accordingly.
-
2009 (12) TMI 840
The Appellate Tribunal CESTAT NEW DELHI heard stay petitions by the applicant. Penalties of Rs. 60,000 and Rs. 1,30,000 were imposed on the applicant for acting in a callous manner and failing to perform duties as prescribed. The Tribunal waived pre-deposit of penalties and stayed recoveries until disposal of the appeals, which are to be tagged with connected Appeal Nos. C/234, 235, 236, and 237/2009.
-
2009 (12) TMI 839
Issues involved: Departmental appeal against order of Commissioner (Appeals) regarding confiscation of excess stock of Gutka and imposition of penalty.
Confiscation of excess stock:
- On 20-7-2005, officers found excess stock of 5285 packets of Gutka during a visit to the factory premises.
- Assistant Commissioner ordered confiscation of the packets valued at Rs. 1,45,338/- but allowed redemption on payment of fine of Rs. One lakh.
- Commissioner (Appeals) set aside the Assistant Commissioner's order.
- Department appealed seeking restoration of original authority's order.
- Commissioner noted discrepancies in the investigation timeline and production activity.
- Commissioner found no evidence contradicting that the seized goods were production on the date of visit.
- Commissioner accepted defense submissions that the goods were day's production and not liable for confiscation.
- Tribunal rejected the appeal by the Department, upholding Commissioner's decision.
Imposition of penalty:
- Assistant Commissioner imposed a penalty of Rs. 97,481/- under Rule 25(1)(b) of the rules.
- Commissioner's order setting aside the confiscation also impacts the penalty imposed.
- Tribunal's rejection of the appeal implies the penalty imposed by the Assistant Commissioner stands nullified.
This judgment by the Appellate Tribunal CESTAT NEW DELHI upheld the decision of the Commissioner (Appeals) regarding the confiscation of excess Gutka stock and the imposition of a penalty. The Tribunal found no grounds to interfere with the factual findings by the Commissioner, who determined that the seized goods were part of the day's production and not liable for confiscation. The appeal by the Department was rejected, affirming the Commissioner's decision.
-
2009 (12) TMI 838
Clandestine manufacture and removal - entire case of the Revenue is built on the statements furnished of Shri Hanumantha Rao by the assessee to the bank which had advanced credit to it - Held that:- During the cross-examination of Shri Hanumantha Rao, when questions were asked about excess granules of 88.76 MTs as indicated in the annexure to the show cause notice, he had wanted to see the monthly particulars. On perusing the statements furnished to bank, he submitted that during the material time he was not in the branch of the bank. In the circumstances, the assessee’s plea that the statements of Shri Hanumantha Rao could not have been relied on to find clandestine clearances by the assessee carries considerable force.
In a larger number of decisions passed by this Tribunal, it was held that clandestine clearance cannot be found without cogent and tangible evidence - In the instant case, Commissioner relied on bank statements, the correctness of particulars contained in which was disputed and not corroborated by any other evidence. The Commissioner has not been able to effectively rebut the claim of the assessee that it had not manufactured sacks in the absence of machinery, yet proceeded to confirm the demand finding that the assessee had been registered for manufacture of sacks - the authorities have not investigated the allegations against VPSL and gathered any evidence.
The allegations raised in the show cause notice were not backed by any reliable or positive evidence. The notice was issued without finding a proper prima facie case against VPSL - demand set aside - appeal allowed.
-
2009 (12) TMI 837
Issues:
Confiscation of goods for lack of import license, challenge to enhanced value, applicability of Foreign Trade Policy, reduction of fine and penalty amounts.
Confiscation of Goods:
The appellants imported goods without producing a license for clearance, resulting in confiscation with an option to redeem on payment of a fine and penalty. The Commissioner (A) upheld the adjudication order, leading to the appeal. The Tribunal upheld the confiscation based on the clear language of the Foreign Trade Policy, which allows the import of second-hand capital goods but not spares that are not reconditioned/refurbished. However, considering that the imported goods were used for drilling, the fine and penalty amounts were reduced to Rs. 1,20,000/- and Rs. 25,000/- respectively.
Challenge to Enhanced Value:
Although the appellants challenged the enhanced value of the goods in the appeal, they did not press this challenge during the arguments. The Tribunal noted this and focused on the issue of confiscation instead. The enhanced value of the goods was upheld by the Tribunal.
Applicability of Foreign Trade Policy:
The submission made by the appellants regarding the import of pipes without the need for a license under para 2.17 of the Foreign Trade Policy was not accepted by the Tribunal. The Tribunal emphasized that the policy allows the import of second-hand capital goods, including refurbished/reconditioned spares, freely. As the imported goods were not reconditioned/refurbished, the confiscation was upheld based on the policy's clear language.
Reduction of Fine and Penalty Amounts:
In light of the imported goods being used for drilling, the Tribunal decided to reduce the fine in lieu of confiscation to Rs. 1,20,000/- and the penalty to Rs. 25,000/-. This reduction was deemed appropriate while upholding the enhanced value of the goods. The appeal was partly allowed based on these considerations.
-
2009 (12) TMI 836
Penalty under 11 AC of the Central Excise Act read with Rule 25 of Central Excise Rules - no allegation of fraud, misstatement of facts with intent to evade payment of duty - demand of differential duty - Held that:- In the present case, even in the show cause notice there is no whisper of fraud, collusion or any willful misstatement or suppression of facts with intent to evade payment of duty.
In order to attract the provisions of Section 11AC it must be alleged in the show cause notice that the duty had not been levied or paid by reason of fraud, collusion or willful misstatement or suppression of facts or by reason of contravention of any provision of Act or Rules with intent to evade payment of duty - In the present case the excess duty paid and adjustment of the same was reflected in the monthly returns.
Penalty not sustainable - appeal allowed - decided in favor of appellant.
-
2009 (12) TMI 835
Issues:
Condonation of delay in filing applications for fixation of brand rate by the Commissioner.
Analysis:
The appeal was filed against the rejection of 10 applications for condonation of delay by the Commissioner. The Commissioner rejected the request citing lack of reasons for the delay. The appellant's advocate referred to a D.O. letter advising a lenient view on condonation of delay and a Tribunal decision supporting a liberal approach. The appellant had a history of timely submissions, and the delay was attributed to problems during the relevant period. The Tribunal, considering the circumstances, decided to condone the delay, emphasizing that the appellants would not benefit from late submissions. The impugned order was set aside, and the appeal was allowed with the delay in filing applications condoned, providing relief to the appellants.
-
2009 (12) TMI 834
Issues involved: Interpretation of penalty under Section 11AC of the Central Excise Act.
Summary:
Issue 1: Imposition of penalty under Section 11AC
The appeal filed by the Revenue questioned the imposition of a penalty under Section 11AC of the Central Excise Act on the respondent. The show-cause notice issued to the respondent proposed a penalty under Section 11AC, along with demanding interest on duty under Section 11AB. The respondent had reversed Cenvat credit along with interest before the notice was issued, contesting the penalty proposal. The original authority refrained from imposing the penalty, a decision upheld by the appellate authority. The Revenue contended that the case law relied upon by the Commissioner (Appeals) was not applicable and that Explanation 1 to sub-section (2B) of Section 11A was not considered. The Revenue also disputed the Tribunal's Larger Bench decision in a previous case. The High Court remanded the case to the Tribunal for a fresh decision on the applicability of Sections 11AB and 11AC to the facts of the case.
Issue 2: Allegations under Section 11AC
Upon reviewing the show-cause notice, it was found that although Section 11AC was invoked against the respondent, there were no allegations of fraud, collusion, suppression of facts, or contravention of any law with intent to evade payment of duty. Section 11AC can only be invoked when such allegations are made and proven. Since none of these allegations were made against the respondent, the decision of the lower authorities to dismiss the penalty imposition was deemed appropriate. Consequently, the Revenue's appeal was dismissed.
This judgment clarifies the stringent requirements for imposing penalties under Section 11AC of the Central Excise Act, emphasizing the necessity of proving fraud, collusion, or wilful misstatement of facts for such penalties to be applicable.
-
2009 (12) TMI 833
Issues:
1. Waiver of pre-deposit and stay of recovery in respect of penalty under Rule 8(3A) of the Central Excise Rules, 2002.
2. Interpretation of penalty provisions under Section 11AC of the Central Excise Act and Rule 8(3A) of the Central Excise Rules, 2002.
Analysis:
The judgment involves the application for waiver of pre-deposit and stay of recovery concerning a penalty imposed on the assessee under Rule 8(3A) of the Central Excise Rules, 2002. The assessee had paid the entire duty amount before the issuance of the show-cause notice, and interest on the duty was paid later. The Commissioner directed the assessee to pay additional interest and imposed a penalty under Rule 8(3A) of the Central Excise Rules, 2002. However, the Commissioner refrained from imposing a penalty under Section 11AC of the Central Excise Act, finding no deliberate attempt to evade duty by the assessee.
The central issue addressed in the judgment is whether the imposition of a penalty under Rule 8(3A) of the Central Excise Rules, 2002 was justified. Rule 8(3A) provides for penalties on defaulters who fail to pay duty within 30 days from the due date. The Commissioner's decision to appropriate the duty paid by the assessee and the proposal to utilize both PLA and CENVAT account payments towards the demand of duty raised questions about the application of sub-rule (3A) of Rule 8. The adjudicating authority's action of virtually waiving the provisions of sub-rule (3A) led to the conclusion that there was no basis for imposing a penalty on the appellant under this rule.
In conclusion, the judgment granted the waiver of pre-deposit and stay of recovery concerning the penalty amount imposed on the assessee under Rule 8(3A) of the Central Excise Rules, 2002. The decision was based on the interpretation of penalty provisions under Section 11AC of the Central Excise Act and Rule 8(3A) of the Central Excise Rules, 2002, emphasizing the absence of a valid ground for imposing a penalty under Rule 8(3A) in the given circumstances.
-
2009 (12) TMI 832
Issues:
1. Waiver of pre-deposit and stay of recovery sought by the appellant in relation to the duty demanded under Section 28 of the Customs Act.
2. Interpretation of procedural requirements under Regulation No. 7 for availing exemption from duty under Project Import Regulations 1986.
Analysis:
1. The appellant sought waiver of pre-deposit and stay of recovery for a duty amount demanded by the original authority under Section 28 of the Customs Act. The appellate authority upheld the demand of duty, stating that the appellant had imported capital goods under a project import registration in 1992, availing exemption under Project Import Regulations 1986. The original authority demanded duty due to the non-production of necessary documents by the appellant under Regulation No. 7. Despite earlier remand by the Commissioner (Appeals) for the appellant to produce evidence, the original authority passed an adverse order, leading to the current appeal. The Tribunal, after examining the case and considering the submissions, found that the appellant was eligible for assessment under Regulation No. 4, and there was no dispute regarding the registration of the relevant contract. The dispute centered on the procedural requirements under Regulation No. 7, which mandated the production of specific documents within a specified timeframe.
2. Under Regulation No. 7, the appellant was required to produce documents such as triplicate copies of bills of entry, attested invoices, installation certificates, and bank remittance certificates, among others, within three months from the date of goods clearance. The assessing authority insisted on original documents, some of which were unavailable with the appellant. The Tribunal considered the case law precedent cited by the appellant's Consultant, referencing the decision in Polyplex Corporation Ltd. v. CCE, Mumbai, where it was held that if the substantive conditions were satisfied, the benefit of project import should be granted during finalization of provisional assessment. In light of the facts and the cited case law, the Tribunal inclined to grant waiver of pre-deposit and stay of recovery, concluding that the procedural requirements under Regulation No. 7 were substantially met by the appellant. The order was made accordingly, providing relief to the appellant in this case.
-
2009 (12) TMI 831
Issues involved:
- Challenge to order dated 28-10-04 by Commissioner (Appeals) in relation to three adjudication orders passed by Asstt. Commissioner on different dates.
- Manufacturing of electric fans under sub-heading 8421.20 and marketing through related concern.
- Confirmation of differential duty short paid by appellants related to price declaration and imposition of penalty.
- Disposal of three appeals by Commissioner (Appeals) concerning approval of price declarations, deductions, and penalties.
- Appellants' challenge regarding deductions on account of average freight, advance payment discount, octroi, and dharamada.
- Appellants' argument against rejection of claims for deductions by lower appellate authority.
- Failure of lower appellate authority to analyze materials on record and apply mind to issues raised.
- Need for proper consideration of issues and remand for detailed analysis.
- Reference to relevant legal principles and previous judgments for deduction claims.
- Commissioner (Appeals) directed to dispose of the appeal expeditiously after hearing parties.
Analysis:
1. The judgment involves a challenge to an order passed by the Commissioner (Appeals) in relation to three adjudication orders passed by the Asstt. Commissioner on different dates. The appellants, engaged in manufacturing electric fans under a specific sub-heading, contested the confirmation of a differential duty that was found to have been short paid, along with the imposition of penalties. The Commissioner (Appeals) disposed of three appeals concerning the approval of price declarations, deductions, and penalties, ultimately upholding the duty demanded and penalties imposed by the adjudicating authority.
2. The appellants specifically challenged the rejection of their claims for deductions on account of average freight, advance payment discount, octroi, and dharamada. The Commissioner (Appeals) considered various legal principles and judgments while addressing these deduction claims, including the applicability of deductions related to interest on debtors, as established in previous cases. The judgment highlighted the Commissioner's reasoning for upholding the duty demanded and confirmed in relation to the approved price declarations, citing legal precedents and principles.
3. The appellants' advocate argued that the lower appellate authority failed to properly analyze the materials on record and apply its mind to the issues raised. The advocate contended that the impugned order displayed a lack of detailed consideration and application of legal provisions, especially concerning deductions for average freight, transit insurance, and advance payment discount. The advocate pointed out discrepancies in the order passed by the lower authority and emphasized the necessity for a thorough analysis of all relevant materials and legal provisions.
4. The judgment acknowledged the advocate's arguments regarding the lack of detailed consideration by the lower appellate authority and the necessity for a proper analysis of the issues raised by the appellants. The judgment highlighted the importance of the Commissioner (Appeals) acting as a court of facts and conducting a comprehensive analysis of all relevant points raised by the parties. Ultimately, the judgment allowed the appeal on limited grounds, directing the Commissioner (Appeals) to dispose of the appeal expeditiously after hearing the parties and passing a reasoned order.
-
2009 (12) TMI 830
Issues involved: Refund of Education Cess on sugar and molasses, application of Section 11B, Section 12B of Central Excise Act, unjust enrichment, passing on incidence of duty.
Refund of Education Cess on Sugar:
The appellants sought refund of Education Cess on sugar, claiming that the incidence of Education Cess was borne by the sole selling agents and not passed on to customers. The Asst. Commissioner initially ordered to credit the amount to the Consumer Welfare Fund, but on appeal, a partial refund was allowed. The appellants argued that those bearing the duty are eligible for refund. However, it was established that the Education Cess had been collected from customers by the appellants themselves. The Commissioner (Appeals) upheld the decision, stating that the appellants are not eligible for refund as they passed on the incidence of Education Cess.
Refund of Education Cess on Molasses:
Regarding the refund claim on molasses, the appellants contended that since molasses were not sold but cleared for captive consumption in the manufacture of Denatured Spirit, the provisions of Section 12B should not apply. They argued that the Denatured Spirit was sold at a price fixed by the State Government, hence, the bar of unjust enrichment should not apply. However, it was held that the principle of unjust enrichment applies even when goods are used for captive consumption, and the person claiming refund must prove that the duty incidence was not passed on. The appellants' argument that selling at a controlled price negates passing on the duty incidence was rejected based on legal precedents. The Commissioner (Appeals) decision to deny the refund of Education Cess on molasses was upheld.
............
|
9911796707
