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TMI Blog2020 (2) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... nt before the Commissioner of Central Tax, Central Excise & Service Tax (Appeals) Raigarh. 2. Facts of the case cover a topsy-turvy path since 1998. For the period from 16.02.1998 to September, 1999, Commissioner (Appeals) issued provisional order to the appellant, engaged in manufacturing of processed textile fabrics with the aid of Hot Air Stenter, to pay of Rs. 10,17,419/- and accordingly appellant paid the same on protest but in the adjudication process initiated through show-cause notice dated 02.07.1999 and subsequent notice dated 26.10.1999, Assistant Commissioner, Vikhroli Division, Mumbai-II dropped the proceedings on the basis of judgement passed by the Hon'ble Supreme Court in the case of CCE Vs. M/s. SPBL Ltd. reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... production of such verification report of the Range Superintendent on the appellant, which he never had the occasion to get in his possession. Further, learned Consultant for the appellant submitted that solely on the ground that the said amount was shown in the book of accounts as expenditure and not receivable from Government would automatically get the burden shifted to the customers is not supported by any cogent reason for which the order passed by the Commissioner (Appeals) is required to be set aside. 4. In response to such submissions, learned Authorised Representative for the respondent-department Ms. Anuradha S. Parab, Assistant Commissioner, in citing judicial decision in the case of Macleods Pharmaceuticals Ltd. Vs. Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is not to be accepted, then there is no point in throwing the blame on the appellant for its failure to produce the same before him which, admittedly was a departmental report and could not be possibly accessed by the appellant unless supplied to it by the Department. 6. Surprisingly, learned Commissioner (Appeals) got the reason to believe on his own that when the tax paid on protest was not shown as receivables in the books of account, the same is deemed to have been recovered from the customer, for which he ignored the Chartered Accountant certificate submitted by the appellant. To the best of my knowledge no such thing can automatically occur and at no point of time the incidence of duty could be realised from the floating or even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be/was absorbed in the exact cost of manufacturing of final product since price of a product can't remain static in all those years as observed in the decision recorded by the Tribunal in the case of M/s Ring Plus Aqua Ltd. Vs. Commissioner of Central Excise & Customs, Nasik reported in 2019 (370) ELT 1364 (Tri. Mumbai). It is not invariably true that when any amount is shown as expenditure or any expenditure is required to be made, the same has to be absorbed in costing of final product unless there is a proof that pricing of the final product has been specifically increased on that score, since there are various mechanisms available before the manufacturer to absorb the cost, say, by way of reducing profit margins of its sale, overhea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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