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TMI Blog1993 (4) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... were pending in appeals filed by the Respondents the Government issued a Notification No. 44/89, dated 21-9-1989 under Section 11C of the Central Excises and Salt Act, 1944. Hence the Collector (Appeals) by her common order remanded the case back to the Assistant Collector for re-examining the Respondent's claim afresh and to issue a speaking order keeping in view the provisions of Section 11C of the Central Excises and Salt Act, 1944. On remand the Assistant Collector after usual adjudicating proceedings held that incidence of duty had not been passed by the Respondents to the customers and allowed the partial refund directing that Rs. 43,25,564/- is payable in cash and Rs. 4,01,620/- is allowed to be credited in R.G. 23A Part II Account. A portion of the refund claim was disallowed by him for the reason that the respondents had not fulfilled the requirements of filing the refund within six months. 3. Against that order of the Assistant Collector, the Respondents as well as the Revenue filed their appeals before the Collector (Appeals). The Respondents filed their appeal against the partial rejection of the refund claim whereas the Revenue filed the appeal against the parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned counsel submitted that both the authorities below have recorded a concurrent findings of fact that the inci- dence of duty was not passed on to any other person by the Respondents and, therefore, this Tribunal should not disturb, sitting in the second appeal, the said concurrent findings of fact recorded by the authorities below. Elaborating further he submitted that prior to 1-3-1988 duty on the subject A.D.V. tyres was nil in the Central Excise Tariff. In the Budget of 1988-89, the ADV tyres were made subject to duty of excise and Notification No. 58/88 was issued giving relief to certain tyres. Since the tyres involved in the present cases are of 16" x 4" sizes these tyres were also fully exempted in terms of the said Notification No. 58/88 but the Central Excise Officers insisted and levied the excise duty @ Rs. 84/- per tyre which the Respondents paid under protest. Subsequently, the Government issued Notification No. 44/89, dated 21-9-1989 under Section 11C providing for exemption of duty on such tyres. And since the Respondent has satisfied the Assistant Collector under Proviso to Section 11C (which provides that the assessee should prove to the satisfaction of the As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. Provided that the person claiming the refund of such duty makes an application in this behalf to the Assistant Collector of Central Excise and proves to his satisfaction that the incidence of such duty had not been passed to any other person. From the Order-in-Original passed by the Assistant Collector, we find that the Assistant Collector after satisfying himself that the incidence of the excise duty paid by the respondents was not passed on to any other person, allowed the refund claim of the respondents. For ready reference his findings may be reproduced herein with advantage - ".....I have examined the evidence produced by the party including the comparative chart showing the rates of tyres from 8-1-1988 to 31-8-1989 and the representative invoices issued by the party and also those further issued by the branch officers corresponding to the gate passes produced by the party in respect of their contention that incidence of duty has not been passed on to any other person because they did not increase their prices consequent upon the imposition of duty from 1-3-1988 and charged the same prices which were being charged prior to 1-3-1988 i.e. prior to imposition of duty. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he party is correct that incidence of duty has not been passed on any other person". (Emphasis supplied) 8. Before the Collector (Appeals), the same contentions which are advanced before us, were also raised, and the same were rejected by her observing as follows : "I have carefully gone through the records of the case, the point referred for determination, the grounds given in the appeal in support of the submissions made by the party during the course of personal hearing. Since the appellants have not represented during the course of personal hearing, I proceed to decide the appeal on the basis of case records, the grounds of appeal and the submissions made by the party during the course of personal hearing. As regards, department's contention that the respondent has themselves bifurcated the assessable value of the tyres in question and the element of duty in their returns in form RT 3 for September 1988 and November 1988 and as such had passed an incidence of duty to the Customer is not convincing in as much as the manufacturer is not required to give assessable value of the product in RT 3 because the ADV tyres during the material period were not liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Ld. JDR are nothing but surmises. The argument that the respondent has not produced any evidence to show that any outstanding amount of excise duty is pending realisation from the customers is totally misconceived. When according to the appellants duty was paid under protest without passing its incidence to the customers where is the question of showing any outstanding amount of excise duty pending realisation from the customers. Except this surmise nothing was pointed out to upset the said concurrent findings recorded by the authorities below as aforesaid. It need not be stated that rightful claimant cannot be denied the refund of the excise duty paid by him on such inferences, conjuctures and surmises when one is called upon to decide as to whether the incidence of duty was passed on to the customers or not. More particularly, when the two authorities below have concurrently held that the incidence of duty was not passed on to the customers in the instant case. Besides, the findings recorded by the authorities below are in consonance with the judgment delivered by the Division Bench of the Madras High Court in the case of Dollar Co. v. Govt. of India, (supra). In that case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before us. This fact also proves the case of the appellants that they did not pass on the incidence of excise duty to the customers due to the prevalent market conditions and to boost the sales. In fact, no evidence was led by the Department to rebut the case of the respondent. 11. In the light of the discussions above, we reject the contention of the appellants and uphold the findings of the authorities below that the incidence of excise duty in the instant case was not passed on to any other person. 12. As regards the other issue the contention of the learned JDR that since ADV tyres became exempted during the period 1-3-1988 to 28-2-1989 by virtue of Notification No. 44/89, dated 29-9-1989 issued under Section 11C of the Central Excises and Salt Act, 1944, the respondents were not eligible to avail of the Modvat in respect of the inputs used in the manufacture of ADV tyres when the credit itself was inadmissible and, therefore, the question of allowing refund in RG 23A, Part II does not arise because the parties had debited duty from the account, has much force. In fact it was conceded to as aforesaid. This vital fact was not conceded by authorities below. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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