TMI Blog2016 (7) TMI 894X X X X Extracts X X X X X X X X Extracts X X X X ..... MANABHAN, MEMBER (TECHNICAL) Shri Yogesh Aggarwal, DR for the appellant Shri B.L. Narsimhan, Advocate for the respondent. ORDER PER: ARCHANA WADHWA Being aggrieved by the order passed by Commissioner (Appeals), Revenue has filed the present appeal. 2. We have heard both the sides duly represented by Shri Yogesh Aggarwal, DR for the appellant and Shri B.L. Narsimhan, Advocate for the respondent. As per the facts on record, the respondents are engaged in the manufacture of Towels and Napkins which they were classifying under Chapter Heading 60.01. Prior to January, 2002, such classification was being accepted by the Revenue. However, vide adjudication order dated 20/12/2001, the classification of the products manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner (Appeals), the respondent filed refund of excise duty so paid by them during the period 24/1/2002 to 31/3/2003, to the extent of ₹ 25,85,918/-. The said refund claim was examined by the Assistant Commissioner, who observed that inasmuch as the appellant have not reflected excise duty separately in the invoices, it has to be held that they have recovered the higher amount from their customers, even though the total amount so recovered continued to remain the same and thus, the refund was hit by the bar of unjust enrichment. Accordingly, he sanctioned the refund claim and credited the same to the Consumer Welfare Fund. 6. The said order of the Adjudicating Authority was again challenged by the assessee before the Commissioner (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of duty has not been recovered from the customers. 8. Ld. DR has also referred to the Hon ble Madras High Court decision in the case of Commissioner of Customs (Exports), Chennai Vs. BPL Ltd. 2010 (259) ELT 526 (Mad.) laying down that the Chartered Accountant Certificate produced by the assessee is merely a piece of evidence reflecting upon certain facts which are not sufficient to show that duty in relation to the refund has not been passed to another persons. The Hon ble High Court further observed that production of documents or other evidence was necessary for this purpose and mere reliance on the Chartered Accountant Certificate was not sufficient. By observing so, Madras High Court has remanded the matter to the Tribunal. 9. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the Revenue, we are of the view that the said documents are sufficient evidences to reflect upon the fact of non-recovery of the duty from their customers. 11At this stage, we may refer to some of the important decisions on the issue. The Honble Delhi High Court in the case of Hero Motorcorp Ltd. Vs. Commissioner of Customs (Import General) 2014 (302) ELT 501 (Del.) has, by dealing with an identical question, observed as under:- In the facts of the present case, it is not disputed or denied that there was no change in the price whatsoever and the refund of CVD was claimed within a short time and the amount involved is very small compared to the overall transactions or turnover of the appellant. The appellant had filed affidavits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and was entered in their balance sheet as recoverable, are all factors leading to the conclusion that the duty has not been recovered. For better appreciation, we reproduce the relevant paragraphs from the said order. The Tribunal has also relied on the balance sheet which is brought on record by the respondent stating about the amount recoverable as excise duty. The Commissioner in its order dated 6.11.2006 which was in favour of the department has observed that the amount was shown as recoverable from the department in the balance sheet. In the rejoinder affidavit, the respondent has brought on record the extract of details of the amount under the heading Excise Duty Recoverable for the year, 2004-05 which was submitted before the Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said decision, the Hon ble Supreme Court decision in the case of Commissioner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. relied upon by the Revenue was also considered. 15. While considering the said decision of the Hon ble Supreme Court, Third member observed as under: The Apex Court s judgment in case of Allied Photographics India Ltd. (supra) cited by the Department does not say that the fact that the goods were sold by the assessee to the consumers exactly at the same time as the price at which they were being sold during the period prior to the event of reclassification, revaluation etc. resulting in payment of higher quantum of duty, by itself, would not be conclusive that the additional burden of dut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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