TMI Blog2010 (8) TMI 300X X X X Extracts X X X X X X X X Extracts X X X X ..... 34,135,137-140/2010 - - - Dated:- 20-8-2010 - V.V.S. Rao and B.N. Rao Nalla, JJ. [Judgment per : V.V.S. Rao, J. (Common)]. - This judgment shall dispose of all the appeals heard together, as similar dispute is involved in these cases. M/s. A.P. Paper Mills, Rajahmundry (APPL), filed refund claims. All of them were allowed by the Assistant Commissioner of Central Excise, Rajahmundry. Some of the appeals by the department were dismissed and some were partly allowed. Aggrieved, the department then moved Customs, Excise and Service Tax Appellate Tribunal, Bengaluru (CESTAT). By final order No. 151-255 of 2006 dated 31-1-2006 in Appeal Nos. E/1109-1151, the learned Tribunal rejected the appeals. Being aggrieved by the orders of CESTAT, the department has filed these appeals under Section 35G of the Central Excise Act, 1944 (the Act). 2. APPL is manufacturers of paper and paper boards falling under Chapter 48 of First Schedule to the Customs Tariff Act, 1975. They clear their goods at factory gate (duty duly paid) and transfer them to their depots at Chennai, Delhi, Kolkata, Mumbai, Hyderabad etc., on stock transfer basis (STB). They conduct sale through these depots. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Otherwise the claim for refund by APPL was accepted. As noticed supra, the department again filed appeals before CESTAT, which were rejected by the final order dated 30-1-2006 [2006 (198) E.L.T. 237 (Tri. - Bang.)]. 5. Senior Central Government standing counsel submits that APPL are required to show element of duty on the depot sale invoice but they have shown all inclusive price without bifurcation of excise duty elements. He would urge that as per the ratio in Mafatlal Industries v Union of India 1997 (89) E.L.T. 247 (S.C.), a presumption has to be drawn that the manufacturer has passed incidence of duty to the customer. In such a case, if the refund is allowed under Section 11B of the Act, the same would be in contravention of the proviso to Section 11B(2) and Section 12B of the Act. He has also criticised the approach of the appellate authority, CESTAT in not appreciating the work sheets enclosing refund claims and the invoices produced by APPL. He has also produced one such invoice before us to, show absence of the bifurcation of excise duty elements. According to him, it has to be presumed that the incidence of duty has been passed on to the buyer. Nextly, he contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under an invoice consigned by the owner or authorised agent. Therefore, the transaction value of the goods is the invoice price at the time of delivery of goods to the buyer. When the goods are cleared from the factory on payment of excise duty and transferred to the depot from where they are delivered to the buyer, assessable value of the goods for the purpose of duty shall have to be necessarily the transaction value of the goods at the time of delivery from the depot. Therefore, there cannot be any dispute that APPL is entitled to claim/refund of excess duty paid under Section 11B on the admitted fact that the price declared at the time of clearance of the factory, is higher than the price at which the goods are sold at the depot, by reason of giving various discounts as per the market policy. To that extent, the senior standing counsel does not dispute. But he contends that the refundable amount is to be credited to Consumer Welfare Fund (CWF) established under Section 12C of the Act, as APPL has not proved that they had not passed on the incidence of duty to the buyer. He draws support and sustenance for such argument under Section 12B of the Act. We are afraid we cannot acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner 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 account current maintained with the Commissioner of Central Excise; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; (d) the duty of excise and interest, if any, paid on such duty paid by the manufacturer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (e) the duty of excise and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (f) the duty of excise and interest, if any, paid on such duty] borne by any other such class of applicants as th ..... 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