TMI Blog2008 (10) TMI 562X X X X Extracts X X X X X X X X Extracts X X X X ..... f Paper and Paper Boards and pharmaceutical products. The dispute as regards availment of benefit of exemption under SSI notification arose for the period June, 1997 to January, 2000. Show cause notices were issued proposing denial of the said benefit on the ground that respondents were using the brand names of other persons and proposing confirmation of duty and imposition of penalty. The said show cause notice stand adjudicated against the appellant by Deputy Commissioner and appeal there-against did not succeed at the level of Commissioner (Appeals). The said order of Commissioner (Appeals) was impugned by the assessee before CEGAT. 3.During the pendency of proceedings, assessee was directed by their jurisdictional Central Excise autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TA6/SOFTUCH3.APL, dt. 10-11-2003. Besides these, the appellants in their appeal memorandum contended that in response to AC s letter F.No. IV/Softouch/case/01-02 dated 9-8-2001, they had already informed him vide letter No. SFT/AHD/CE/2001-2002/08-03, dt. 9-8-2001 that the duty paid @ 16% is under protest which was borne by them and the same was not received from their customers and their prices remains the same inclusive of Central Excise duty being absorbed by them and paid under protest till final order against pending appeal; that the price shown in invoices was composite and no duty was shown separately therein; that the duty of Rs. 1,44,728/- paid under protest is mentioned in the Schedule-9 under the head Loan Advances of their a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding passing on of the incidence of duty to the customers by the appellants. I find that the adjudicating authority has failed to appreciate the appellants letter F.No. SFT/AHD/CE/2001-2002/08-03 dt. 9-8-2001 which was sent to him by them lodging their protest against payment of full rate of duty on the products bearing brand name of others instead of availing exemption on the products in question and informing that our consumers cannot bear these additional cost in consideration of the stiff competition. Therefore, these additional costs will be borne by us and our price list remains the same inclusive of Central Excise Duty, being absorbed by us and paid under protest till final order against pending appeal . I find from the copy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and recovered from the customers the C.Ex. duty (under protest) accounts would have been nullified and would not have remained as recoverable outstanding. I find from the copy of ledgers through invoices for the period in question is composite i.e. inclusive of excise which would lead to the presumption that the element of duty has been passed on to their customers, but the view taken by the Hon ble Tribunal in case of CCE v. Metro Tyres Ltd. 1996 (82) E.L.T. 95 (Tribunal) which is subsequently upheld by the Apex Court 1997 (94) E.L.T. Page A.51 has clearly indicated that where assessee s invoices during the material period of refund showed a composite price without indicating the duty separately and sale price of the goods before as well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same is being absorbed by them awaiting final order of Tribunal. Revenue in their appeal memo have not contested the above findings and have not advanced any arguments or reasons to rebut the above findings of Commissioner (Appeals). It is held in the same decision of the Hon ble Supreme Court in case of Allied Photographics India Limited that the fact of non-passing of duty incidence to the customers can be established from other evidence. As such, we find that the Commissioner (Appeals) has not granted relief to the respondent only on the ground of uniformity of price but also by taking into account the appellant s letter dt. 9-8-01. Reference to balance sheet further corroborates the above stand of the assessee. 9. As such, we find no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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