TMI Blog2020 (10) TMI 471X X X X Extracts X X X X X X X X Extracts X X X X ..... reflected in the balance sheet prepared as on 31.03.2019. It is an admitted fact on record that the excess paid central excise duty by the appellant during the provisional assessment of the excisable goods were not reflected as part of expenditure in the profit and loss account prepared for the relevant period. Thus, in absence of reflection of such amount as an element of expenditure in the profit and loss account, the profitability of the company has not suffered. Further, reflection of the refund amount in the balance sheet under the head of loans and advances , clearly depicts that the incidence of excess paid duty amount has all along been borne by the appellant. Therefore, it cannot be said that the element of excess paid central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e course of provisional assessment of the goods. The refund application filed by the appellant was considered favourably by the original authority. However, instead of paying the refund amount to the credit in the appellant s account, the department had credited the same to the Consumer Welfare Fund, created under Section 11D of the Central Excise Act, 1944. On appeal against the original order dated 31.03.2011, the learned Commissioner (Appeals) vide the impugned order dated 29.07.2011 has upheld the said order and rejected the appeal filed by the appellant. Feeling aggrieved with the impugned order, the appellant has preferred this appeal before the Tribunal. 3. The learned Advocate appearing for the appellant submits that the refund a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Consumer Welfare Fund. 4. On the other hand, the learned AR appearing for the Revenue reiterates the findings recorded in the impugned order and further submits that since the appellant had passed on the duty element to its ultimate consumer, while selling the goods, the presumption provided under Section 12B ibid is satisfied and accordingly, the authorities below have correctly transferred the refund amount to the Consumer Welfare Fund. He has relied upon the judgment of Hon ble Supreme Court in the case of Commissioner of Central Excise, Madras Vs. Addison Co. Ltd., 2016 (339) E.L.T. 177 (S.C.) to strengthen the case of Revenue that when the credit note has been issued, mentioning the duty component, the same amount should appropri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Fund in terms of sub-rule (6) of Rule 7 as the appellant failed to comply with condition (a) of proviso to said sub-rule (6) of Rule 7. I, therefore, I observe that adjudicating authority has rightly denied the request of appellant to sanction refund to them and rightly transferred the same to Consumer Welfare Fund. However, I would like to mention here that AC has transferred the refund to Consumer Welfare Fund under Section 11D of CEA, 1944 instead of sub-rule (6) of Rule 7 of CER, 2002. 7. On careful consideration of the above observations made in the impugned order, I find that the amount in question was credited to the Consumer Welfare Fund on the ground that the incidence of excess duty has been passed on to the dealers of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diting the amount of refund to the Consumer Welfare Fund. Pursuant to the remand direction of the Tribunal vide order dated 13.06.2016, the original authority took up adjudication proceedings and passed the original order dated 27.07.2018 and sanctioned the refund amount to the assessee. Further, I also find that in the relied upon decisions by the learned Advocate, this Tribunal has held that reflection of the amount of refund as claims receivable under the head of loans and advances should conclusively prove that the incidence of excess paid duty has not been passed on to the buyer or any other person and same has been borne by the assessee. Further, I also find that on the basis of books and accounts maintained by the appellant, the Char ..... X X X X Extracts X X X X X X X X Extracts X X X X
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