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TMI Blog2012 (4) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 returns filed for the months of February, 1994 and March, 1994. The said order further records that refund claim for the excise duty paid in the month of February, 1994 and March, 1994 and in the other preceding months should be made with the Assistant Collector of Central Excise. 3. The petitioner thereafter made applications for refund. The said applications were rejected by the Assistant Collector vide order dated 15th November, 1995 on various grounds. He held that the duty incidence was passed on to the customers as indicated in the gate passes. He further recorded that the value shown in the invoices issued along with the gate passes was towards sum total of assessable value of the item and the duty incidence thereon and, therefore, duty incidence had been passed on to the customers. 4. The petitioner against this order filed an appeal, which was disposed of vide order dated 12th July, 2001 by the Commissioner of Customs (Appeal). In the grounds of appeal, the petitioner had pleaded and submitted that the observations of the Assistant Commissioner to the effect that the value shown in the invoices issued along with the gate passes was sum total of assessable value of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id on remoulded chocolates. Inclusion of the value of the remoulded chocolates in the aggregate value of clearances of the assessee for the purpose of determining the extent of exemption under Notification No.1/93 CE led to a situation in which the appellants had to pay duty of excise on the other two products viz. chocolate confectionery (CSH 1083.00) and chocolate covered biscuits (CSH 1905,11) cleared in excess of the limit. In the final order ibid, this Tribunal has also held that the value of the non-excisable item viz. converted chocolates cannot be included in the aggregate value of clearances for determining the limit of exemption under Notification No.1/93-CE. As regards the excess duty paid on chocolate confectionery under the undisputed tariff entry CSH 1803.00, correctness of the quantum of duty to be refunded requires to be checked after excluding the assessable value of remoulded chocolates from the aggregate value of clearances. In regard to chocolate-covered biscuits, it has been conceded by ld. Consultant that the classification dispute is still alive before the adjudicating authority. This part of the refund claim, therefore, will be held to be premature. As and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mer Welfare Fund in terms of Sub Section 2 of Sec. 11B of the Central Excise Act, 1944. 28. I therefore sanction an amount of Rs.3,22,599/-. However since the claimant has not come forward to show that the duty has not been passed on to the buyers. In view of the existing law enumerated in the Central Excise Act and also in view of the Hon'ble Supreme Court decision in the case of M/s Mafatlal Industries Ltd. Vs. UOI 1997 (89) E.L.T. 247 (S.C) and M/s Sahakar Khand Udyog Mandal Ltd. Vs. CCE-2005 (181) E.L.T. 328 (SC), I have no option but to credit the same to the Consumer Welfare Fund. In terms of sub Section 2 of Section 11B of the Central Excise Act, 1944. 29. Accordingly I pass the following order:- ORDER I have sanction the claim of Rs.3,22,559/- filed by M/s Munch Food Products Ltd. and order for crediting the same in the consumer Welfare fund established by the Central Government under Section 12C of the Central Excise Act, 1944." 9. The petitioner against this order approached the Excise and Service Tax Appellate Tribunal, who vide order dated 7th September, 2007, dismissed the application filed by the petitioner on the ground that it was not maintainable as an appeala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Confectionery and Chocolate Covered Biscuits classifiable under chapter heading 18.03 and 19.05 of the Central Excise Tariff Act, 1985. They were also clearing re-molded chocolate as non-excisable goods and filed their classification list for approval by the departmental officer for the period February, 1993 and April, 1993-94. This classification was in dispute and the assessments were made provisionally since February 1992 onwards. These goods were however being cleared on payment of duty under protest. The assessments were finalized by the Superintendent on 1.5.1995 vide his letter C.No.CE-20/Munch/R-17/Misc/1995-2174 on the basis of the order in appeal No.213-CE/Del/94 dated 31.3.1994 and advised the petitioner company to file refund claim for any excess duty paid in the relevant period. The duty element was however was borne by the petitioner company and was not collected from the buyers for which the necessary documents i.e. GP-1 showing duty element and invoices issued for sale of goods to the customer showing nil duty element were submitted to the Assistant Collector for verification of the refund claim which was filed by the petitioner company. The invoices issued for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Commissioner of Customs (Appeals), who had passed an order dated 4th July, 2001 communicated on 12th July, 2011. In this order, the Commissioner of Customs (Appeals) had recorded a different finding that rate/duty mentioned in the gate passes was 'Nil'. However, he had concluded that the prices mentioned in the invoices were inclusive of duty. As held above, the later observation does not have any force and has to be rejected as wrong. This order was made subject matter of challenge before the tribunal and we have quoted above the order dated 27th March, 2002 passed by the tribunal. 16. On the last date of hearing, we have called upon the respondents to produce before us the gate passes. They have expressed their inability to produce gate passes and photocopy thereof as matter is very old and pertains to the years 1992-94. We may notice that the averments made in the additional affidavit filed by the respondents referred to in paragraph (14) do not appear to be correct. The said averment proceeds as if the gate passes and invoices were examined by the deponent. 17. In view of the aforesaid position, we are inclined to accept the prayer of the petitioner. Accordingly, the w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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