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TMI Blog2009 (12) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... r the CESTAT is legally justified in coming to the conclusion that the respondent has not passed on the burden of duty in question to the buyers, in spite of Section 12B of the Central Excise Act, 1944, and in the absence of sufficient evidence by the Respondent to rebut the presumption under the said section? (b) Whether it is permissible for the CESTAT to totally ignore the effect of Section 12B of the Central Excise Act, 1944? 4. Brief facts of the case are as follows. (a) Respondent is engaged in the Manufacture of excisable goods i.e. Passenger Utility Vehicles and Parts thereof falling under Chapter 87 of the Central Excise Tariff Act, 1985. The Respondent purchases Tyres, Tubes and Flaps from M/s. South Asia Tyres Ltd., (for short "SATL") Waluj, Aurangabad and avail Modvat Credit of the duty paid on such Tyres, Tubes and Flaps. Prior to 1-3-2000 the entire duty i.e. the Basic duty specified under First Schedule as well as the Special Duty specified under the Second Schedule of the Central Excise Tariff Act, 1985, paid on the Tyres, Tubes and Flaps, was avail able as Modvat Credit to the Respondent. However, consequent to amendment to Central Excise Rules with effect from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny other person. (d) Being aggrieved by the O.I.O No. 112/RFD/2001 passed by Deputy Commissioner, Central Excise, Aurangabad-II Division, Aurangabad rejecting their Refund Claim, the respondent preferred an appeal with the Commissioner (Appeals). The Commissioner (Appeals), Mumbai decided the matter vide O.I.A. No. SDK (1474) 137/AUR/2002 dated 28-2-2002, a copy of which is produced here with and marked as Annexure-B holding that respondent is entitled to the Refund, but the same cannot be given to them as they had not shown that they have not passed on the duty burden to the buyers of the vehicles. (e) The Tribunal accepted the contention of the assessee on the ground that respondent/assessee has sold its products under loss which was evidenced from the Chartered Accountant's certificate and thus incidence of duty has not been passed on to its customere by order dated 28-2-2005 in Order No. 308/2005. It is this order now questioned by the revenue in this appeal. 5. Sri. C. Shashikantha, learned standing counsel for the appellant would submit that the burden of proving the duty of incidence has not been passed on to its customers is on the assessee and same has not been discharg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering the questions of law against the revenue and dismissal of the appeal. 7. The undisputed facts leading to filing of this appeal by the revenue are that; a refund claim of Rs. 60,77,117/- was filed by the respondent and the respondent being a manufacturer of motor vehicles purchased tyres and tubes from M/s. South Asia Tyres Ltd. Waluj, Aurangabad on payment of central excise duty. The tyres and tubes purchased for the period till 28-2-2000 was at 32% w.e.f 1-3-2000. The excise duty leviable was split into CENVAT rate at 16% and second schedule (SDE) rate of 16% as per Notification No. 6/2000 dated 1-3-2000. However, remission was allowed on payment of SDE on tyres and tubes to its original equipment manufacturer subject to their following the chapter X procedure as envisaged under Rule 192 of Central Excise Rules, 1944. The respondent have secured the tyres and tubes from 1-3-2000 to 31-1-2001 from M/s. South Asia Tyres Ltd. on payment of CENVAT/BED at 16% and had also paid SED at the rate of 16% and made a claim for refund of Rs. 60,77,117/- towards SED paid. The original authority on consideration of the claim rejected the refund claim by order dated 12-6-2001 as per Annexu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of sub-section (2) as substituted by that Act.) Provided further that the limitation, of one year shall not apply where any duty has been paid under protest. (2) If on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any, part of the duty of excise and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund: Provided that the amount of duty of excise and interest, if any, paid on such duty of excise as determined by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to- (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant's current account maintained with the Commissioner of Central Excise; (c) refund of credit of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gazette. Explanation - For the purposes of this section - (A) "Refund" includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (B) "relevant date" means :- (a) In the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods (i) If the goods are exported by sea or air, the date on which such goods are loaded, leaves India, or (ii) If the goods are exported by land, the date on which such goods pass the frontier, or (iii) If the goods are exported by post, the date of dispatch of goods by the Post Office concerned to a place out side India; (b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes afore said; (c) in the case of goods to which bendrols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horities clearly establishes that the excise duty has been borne by the respondent itself and when this initial burden has been discharged, it was for the department to call upon the respondent to produce any other contra material which admittedly has not been done according to him. It is to be noticed that the Cost Analysis Certificate by itself would not be sufficient to substantiate the claim that the incidence of duty has not been passed on to its customers. It would be one of the relevant factors to consider the claim of an applicant for refund of duty claim. 10. It is in this background, under Section 12B of the Act, a presumption is raised infavour of the revenue and it is for the applicant to prove that incidence of duty has not been passed on to its customers which is evident from the show cause notice issued to the respondent herein. Under sub clause (iv) of show cause notice the adjudicating authority has called upon the respondent herein to establish by documentary evidence that incidence of duty for which refund claim is filed, has not been passed on to the ultimate customers or any other person. 11. To this, Sri. Ravi Shankar, learned counsel would submit that the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before the adjudicating authority and the certificate now produced by the respondent's counsel before this Court is that of Sri. Om Prakash, Chartered Accountants, dated 17-6-2002 i.e. subsequent to the order of adjudicating authority. Hence, we find that that certificate which has now been pressed into service was admittedly not available before the adjudicating authority for being considered. In these circumstances, we are of the opinion that the questions of law framed above require to be answered in favour of the revenue and against the assessee and accordingly, we do so. 15. In so far as the facts and circumstances of the present case is concerned, we find that the Cost Analysis Certificate dated 17-6-2002 was not avail able before the adjudicating authority and thus in the fitness of things, it would be just and proper to remit the matter to the adjudicating authority to consider the Cost Analysis Certificate dated 17-6-2002 now produced before this Court (said to have been produced before Tribunal also) and also such other material may be produced by the respondent to demonstrate that the incidence of duty has not been passed on to the customers for considering the refun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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