9911796707
TMI Blog2017 (9) TMI 869X X X X Extracts X X X X X X X X Extracts X X X X ..... CUS-003-APP-28 to 40-16-17 dated 11.01.2017. Since all the appeals are filed against the same impugned order and is of the same appellant the appeals are disposed of by a common order. 2. Heard both sides and perused the records. 3. On perusal of records, it transpires that issue is of refund of cess paid on final products. 4. Appellant is a manufacturer of biris and clear the same on payment of appropriate Central Excise Duty. During the period in question September, 2006 to November, 2014, they also paid cess levied under Beedi Workers Welfare Cess Act, 1976 and also paid education cess on such cess. On noticing that education cess is not payable on Beedi cess as per clarification issued by CBEC vide circular No.978/2/2014-CX dated 07. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the original authority has carefully and properly examined the said plea before arriving at his conclusion not to agree with such plea and deny the claim of refund for lack of evidence submitted to prove that the incidence of cess paid had not been passed on to any other person. In this regard, as has been noted by the original authority, I find that in the case of Sahakari Khand Udyog Mandal Ltd Vs Commissioner of Central Excise and Customs [205(18 DELT 328(SC)], the Hon'ble Supreme Court has held that the doctrine of unjust enrichment being based on equity could be invoked irrespective of the applicability of Section 11B of the Central Excise Act, 1944 to the claim made by a person to ensure that benefit to which such a person is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t shown such cess paid as 'receivables' in their balance sheets. The appellant drew my attention to the decision of Hon'ble Tribunal in the case of Shipbing Corporation of India Ltd., Vs. Commissioner of Customs, Jamnagar, reported in 2010 (258) ELT 555 (Tri - Ahmd) to submit that merely because the amount of duty paid is shown as expenses. It cannot be concluded that incidence of duty has been passed on. I have considered the case law to the facts of this case and find that the decision of the Hon'ble Tribunal has not attained finality in that case since the matter has been sent back for denovo decision. It is also to be noted that in the said case the amount obtained as refund was also shown as income by the party which is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount of cess paid. It does not rule out that the sale price did not, at any point of time, take into account the amount of cess paid. In fact, in view of the accounting of cess paid as an expense, the price is to be held inclusive of such expenses. It is not that the appellant had a dispute on the question of liability to discharge cess on the goods at the time of their clearance and hence they had, as a matter of policy, excluded the cost of such cess from the value of the goods charged to their customers. It is also not their case that the disputed amount of duty/cess was being shown as receivable from the government in their books of accounts. Hence, the price charged by them included the cess paid. Therefore, the refunds, if granted, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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