TMI Blog2020 (2) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... he Department - 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, overhead expenditures of the company etc. In the case on hand, it is acknowledged that there was no change in the price structure of the product immediately after payment of duty on protest - The appellant is entitled to get refund of ₹ 10,17,419/- alongwith interest as per Section 11BB of the Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as such demand under Textile Processors Annual Capacity Determination Rules, 1998 was held to be unsustainable in case of manufacturing done through Hot Air Stenter alone. Appellant sought for refund of ₹ 10,17,419/- that was rejected by the Deputy Commissioner, Central Excise, Kurla- Vikhroli Division, Mumbai-II Commissionerate, by the Commissioner (Appeals) way back on 25.01.2005 in the appeal filed by appellant, against which appellant moved to CESTAT and got an order of remand dated 25.08.2016 for redetermination of the refund claim by the original adjudicating authority. In pursuance to the order of CESTAT, the Deputy Commissioner, Central Excise, Kurla-Vikhroli Division, Mumbai-II Commissionerate sanctioned the refund claim, ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise and Service Tax reported in 2019-TIOL-2868-CESTAT-AHM and others decisions like Hindustan Petroleum Corporation Ltd. Vs. Commissioner of Central Excise, Mumbai II reported in 2015 (317) ELT 379 (Tri-Mumbai), Saraf Fab Trade Pvt. Ltd. Vs. Commissioner of Customs, Jaipur-I reported in 2018 (363) ELT 853 (Tri.-Del.) argued that the burden of establishing that incidence of duty had not been passed on to the customer was on the appellant which it failed to discharge, for which interference by the Tribunal in the order passed by the Commissioner (Appeals) is uncalled for. 5. Perused the case record, it is observed that learned Commissioner (Appeals) had rejected the order of refund passed by the Deputy Commissioner, Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same customer, who had not earlier paid the duty as not sought by the appellant in its invoices at the time of sale. Therefore, production of sample invoices before the Commissioner (Appeals) could have been sufficed to establish that tax was not collected from the customer. Even if that was rejected for nonproduction of each and every sale record, it is very much clear from the show-cause notice and various orders passed in the last 22 years of proceedings of this case that provisional order was passed by the Commissioner of Central Excise demanding duty on production capacity of the appellant manufacturing unit as per Textile Processors Annual Capacity Determination Rules, 1998 and not on sale invoices. Moreover, the said duty was dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... head expenditures of the company etc. 7. In the case on hand, it is acknowledged that there was no chance in the price structure of the product immediately after payment of duty on protest. Hence, in carrying forward the judicial decision set by this Tribunal the following order is passed. ORDER 8. The appeal is allowed and the order passed by the Commissioner of Central Tax, Central Excise Service Tax (Appeals) Raigarh vide MKK/106/RGD APP/2018-19 dated 18.05.2018 is hereby set aside. The appellant is entitled to get refund of ₹ 10,17,419/- alongwith interest as per Section 11BB of the Central Excise Act, 1944 to be calculated from three months after filing of the application of refund. The respondent-department is dir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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