TMI Blog2012 (4) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... traders of chocolate confectionary, chocolate covered biscuits and remoulded chocolates. Chocolate confectionary is classified under Tariff Chapter Heading No.18 and chocolate covered biscuits are classified under chapter heading No.19. On both items, excise duty is payable. On remoulded chocolates, as per the case of the petitioner, which has been accepted by the Customs, Excise Service Tax Appellate Tribunal (tribunal, for short), no excise duty is payable. 2. Superintendent of Central Excise issued assessment memorandum dated 1st May, 1995 finalizing the provisional assessment. In terms of the said order, he had raised a demand of Rs.1.19.775.39/- in respect of the periods April, 1993 to July, 1993 and the RT-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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndation for making the said assertion. 7. The petitioner preferred an appeal before the Customs, Excise and Gold (Control) Appellate Tribunal. The said appeal was disposed of by a detailed order dated 27th March, 2002. It was held as under:- 4. I have carefully examined the submissions. The refund claim in question comprises three distinct elements. The claim of Rs.2,81,558/- is in respect of remoulded chocolates. There is no disputed of the fact that this item has been held to be non-excisable by this Tribunal as per Final Order NO.653/99-D dated 2.7.99. Neither side has any case that he said final order of this Tribunal has not become final. That being so, there cannot be any difficulty in refund of any duty paid 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 Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... III held:- 27. I find that refund is not admissible to the manufactures, if they had already passed on the incidence of the duty to the buyers. The burden to show that the duty has not been passed on to the buyers is on the person claiming the refund. Further, I find that under the provisions of Section 11B of the Central Excise Act, 1944, the applicant is required to furnish documents/evidence to establish that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty had not been passed on to any other person. In such an eventuality the amount so determined and found refundable by the adjudicating authority is required to be credited to the Consumer 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed on to any other party. The date on which the goods were cleared and the excise duty paid thereon, date on which the assessment order was passed and the date on which the duty was paid will be indicated in the affidavit. The respondents will file response to this affidavit within 15 days thereafter. In the response the respondents will indicate if the duty liability mentioned in the invoices was nil and why and on what basis the claim for refund has been rejected. They shall also indicate evidence, if any, to show, if the rate of duty is Nil, refund cannot be claimed. Relist on 29th February, 2012. 13. In response to the said order, the petitioner has filed an affidavit stating as under:- 2. That the petitioner company was manufacturing Chocolate 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 Febru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riplicate copies of gate passes (Now called invoices) issue to the customers. From the gate passes, it is noticed that the duty was charged from the customers. As per Rule 52 A of the Central Excise Rules, 1944 as it existed then, the gate pass was the only document prescribed for collection of Central Excise duty. As indicated in the gate passes, the duty incidence was passed on to the Customers. Further value shown in the invoices issued along with gate passes was the sum total of assessable value of the item and the duty incidence thereon. As such invoices issued by the party included the duty liability. (emphasis supplied) 15. The order referred to by the respondents in their affidavit is the order dated 15th November, 1995. As noticed above, this order was challenged before 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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