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TMI Blog2005 (6) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods. Rather onerous. 2. The appellants make Vajradanti and Turmeric Paste. Way back in 1979 a dispute arose on the classification of these products under the then Central Excise Tariff and indeed on their leviability to duty. Through the eighties the battles were fought, lost and won. The Hon'ble High Court finally decided in 1988 that the products in question were Ayurvedic Medicines. Those days the tariff schedule was such that Lifebuoy Soap which kills imaginary germs infesting your body constantly could have passed off as a medicine if not exactly Ayuervedic, if pressed hard. The Revenue was happy with the verdict. The appellants were not. Soon after the High Court called Vicco Vajradanti and Vicco Turmeric cream 'Ayuervedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se notice instead. The notice asked them to explain why all the Rupees and Paise should not be credited to a fund called 'Consumer Welfare Fund' envisaged in Section 11B as otherwise it would lead to unjust enrichment of the appellants. One can now understand the significance of the second part of the agreement drawn up by the Apex Court quoted above. 5. Before the Assistant Commissioner the appellants pleaded that the amounts paid by them during 1-4-1983 to 31-3-1986 were security deposits and therefore the provisions of Section 11B of Central Excise Act, do hot apply. They even suggested that since the products in question are fully exempt from payment of duty 'No' provisions of Central Excise Act would apply to their case, let alon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said amount is not a part of deposits made during 1983-1986. 9. For the reasons above stated he held that the appellants passed on the incidence of duty by adding it to the assessable value declared and therefore the amount claimed as refund of duty should be credited to the Consumer Welfare Fund. 10. Before the Commissioner (Appeals) the appellants again argued that the amounts deposited at the instance of the High Court did not represent duty. The Commissioner was not impressed either. He reminded the appellant as to what the Supreme Court in the compromise order declared and rejected the appeal on merits as well. Hence this appeal. 11. Heard both sides. 12. Most part of the hearing was spent on hearing as to how ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the element of duty. We are in total agreement with his findings. As per the argument that the price remained unchanged we quote the Supreme Court's observations in Allied Photographics cited (supra) quote "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". 15. In the appeal memorandum the appellants submitted that in any case Rs. 3,40,40,810/- collected from them in pursuance of the High Court's order represents wrong recovery of duty from 1-4-1973 to 31-3-1983 and therefore cannot be said to have been passed on. This plea is contrary to what has been stated by the appellants that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re not charging any duty, while all along they were passing the duty burden either in the form of administrative expenses (para k of the appeal memorandum) or dipping into their profits perhaps. In any case the buyer of the goods will hardly be in a position to say how the seller is costing his product. These affidavits are not worth the paper they are written on. The Supreme Court in Mafatlal's case observed thus : "Ordinarily no manufacturer will sell his products at less than the cost price plus duty. He cannot survive in business if he does so. Only in case of distress sales, such a thing is understandable but distress sales are not a normal feature and cannot, therefore, constitute a basis for judging the validity or reasonableness o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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