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TMI Blog2005 (2) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... earned DR has placed reliance on the decision of the Supreme Court in the case of CCE, Mumbai-II v. Allied Photographics India Ltd. [2004 (166) E.L.T. 3 (S.C.)], in support of his contention that price being same is not sufficient satisfaction. Reliance has specifically been made on the following observation in Para 18 of the judgment which is reproduced herein below :- Before concluding, we may state that "18. uniformity in price before and after the assessment does not lead to the inevitable conclusion that incidence of duty has not been passed on to the buyer as such uniformity may be due to various factors. Hence, even on merits, the respondent has failed to make out a case for refund. Since relevant factors stated above have not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... buyers. Such is not the case here." 3.As against this, the contention of the learned Chartered Accountant is that when the refund claim is by a manufacturer uniformity in price before and after the period of taxation would be sufficient evidence in view of the following observations contained in Para 17 of the Apex Court's judgment in Allied Photographics India Ltd. (supra) as under :- "..........It was submitted that since the sale price of the goods before and after the assessment remained the same the burden of excess duty was absorbed by the respondent. It was submitted that in any event the sale price of the goods increased much less than the amount of duty (differential) involved in this case and, therefore, incidence of duty was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, itself is sufficient to show that incidence of duty has not been passed on to the customers. This view was followed by the Tribunal in another case i.e. CCE v. Metro Tyres Ltd., reported in 1996 (82) E.L.T. 95 and the appeal filed by the revenue against this decision, was dismissed by the Hon'ble Supreme Court reported in 1997 (94) E.L.T. A51. In view of the settled position of law, as discussed above, I find no infirmity in the impugned order. The appeal filed by the revenue is rejected." 5.There appears to be conflict of views between the decision of the Tribunal in the case Gopi Synthetics Ltd. (supra) and Corona Cosmetics & Chemicals (supra) and other cases. The file may, therefore, be placed before the Division Bench for dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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