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2016 (10) TMI 132

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..... cts. In the present case the stand of the appellant that the price of the final product remained same before and after the payment of the excise duty on the intermediate product. As regard the finding of the lower authorities that the amount of duty paid was not shown as receivable in the books account of appellant and the same was booked under Profit & Loss account, therefore no other proof required that the duty incidence is not included in the value of final product. I do not agree with this contention of the lower authorities for the reason that treatment of duty paid amount in the books of account is not conclusive proof that the incidence has been passed on to some other person. Even if the duty paid booked under expenditure and th .....

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..... Payer Unit, Mumbai, whereby learned Commissioner rejected the appeal filed by the appellant and upheld the Order-in-Original No. ANK-I/TK/920/R/08-09 dated 16.12.2008. 2. The fact of the case is that during the process of manufacture of intermediate product namely Notional Resin Contents of Wire Enamels is formed and the same was consumed captively by the appellant, without payment of duty. After pointing out by the Department, the appellant started paying duty on the said product Under Protest. The issue was decided in favour of the appellant by the Tribunal. Subsequently the appellant filed a refund claim on 29.09.1998 which was rejected by the Assistant Commissioner vide Order-in-Original dated 26.05.1998. The appellant had filed an a .....

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..... e that the incidence of the duty has not been passed on to any other person. Being aggrieved with the de novo adjudication order, the appellant filed an appeal before the Commissioner (Appeals) which was rejected by the impugned order therefore the appellant is before me. 3. Shri Mihir Deshmukh, learned Counsel along with Ms. Ami Parekh, learned Advocate appearing on behalf of the appellant submits that the duty was paid on the intermediate product Under Protest. However the duty paid was not taken into account of cost of the final products. This gets proved with the fact that price of the final product before payment of duty and after payment of duty remained the same, therefore duty paid on the intermediate product is not part and parc .....

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..... paid by them as a receivable in books of account. He submits that being a very old matter, the Chartered Accountant certificate also does not show the correct position, hence the Chartered Accountant certificate is vague and the same was rightly rejected by the lower authorities. He submits that the main ground of the appellant is that the price of the final product before and after payment of duty remained same. This is not sufficient evidence to show that the evidence of duty has not been passed an, thus the appellant have not produced any proper evidence. Therefore the adjudicating authority as well as the appellate authority have rightly held that the refund is hit by unjust enrichment. 5. I have carefully considered the submissions .....

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..... nce not passed on to any other person. Therefore merely because the Excise duty is booked as expenditure in Profit Loss account, it cannot be said the incidence of duty has been passed on. As per the above discussion, I am of the view that considering the peculiar facts of this case if the duty paid by the appellant has not been explicitly charged to their customer and if price of the final product remained same for the period prior to payment of duty and thereafter, it is sufficient to accept that the incidence of Excise duty paid on intermediate product has not been passed to any other person. I therefore direct the adjudicating authority to verify properly the above aspects and if it is found correct then the appellant appears to be pr .....

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