9911796707
TMI Blog2023 (10) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals Thane) GST&CE, Mumbai by which the appeal filed by the appellant, against the adjudication order dated 17.4.2007, was rejected. 3. The facts leading to the filing of the instant appeal are stated in brief as follows. The appellant was engaged in the manufacture of Mineral Water and Aerated Water. The finished goods were packed and sold in glass bottles and crates and during handling some bottles get damage also. The scrap i.e. damaged bottles etc. was disposed off by the appellants. Empty packing material, received in plastic containers and bags were also disposed off by the appellants. Since the department was of the view that the duty was payable on such scrap cleared from the factory therefore as per their directio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxx xxx xxx From the above, it is clear that the appellants, during the period when they started paying duty under protest, have recovered the duty from the clients at the rate at which they had paid to the Revenue. This has been done in such a manner that in the total price has remains the same. The invoice issued by the appellants were worked out in such a manner that while duty was recovered from the buyers the price of the goods remains more or less the same. However, in such circumstances it cannot be said that duty elements has not been passed on to the customers. So long as the invoice shown the duty amount, the same is deemed to have been passed on to the customers. Further, Hon'ble Supreme Court in the case of CCE, Mumbai Vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tomers. The appellants have also produced Chartered Accountant's certificate in the Tribunal, the same was not produced before the Commissioner (Appeals). I find that while the impugned order deals with the second situation, it is silent about the first situation. 7. In view of the above, I uphold the impugned order so far as it relates to the refund in respect of clearances made on payment of duty. However, in respect of refund claim on the duty paid for the past clearances, the impugned order is set aside and the matter is remanded to the Commissioner (Appeals) for giving his findings on the issue. Further, since the Chartered Accountants certificate has been produced for the first time in the Tribunal and it was not produced befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der observed the Chartered Accountant's certificate did not mention that the excise duty for the past period have not been included in the commercial invoices and was borne by the appellant themselves but he failed to appreciate that as per common trade practice commercial invoices are issued when no duty is charged and once the duty is charged then excise invoice are to be issued. In this matter for the past period the appellant had paid the duty 'under protest' so naturally only commercial invoices had been issued to their customers and this fact had also been recorded by this Tribunal in its order while remanding the matter to the learned Commissioner. It is settled through decisions that when duty had been paid during investigation at t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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