9911796707
TMI Blog2024 (6) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... pay excise duty on the sale of packing material i.e. M.S. Drums as the excise duty is not applicable since the drums were not purchased as input. Several show-cause notices were issued by the Central Excise Department demanding the excise duty. The appellant started depositing the excise duty from 20/5/2000 to the department to avoid any consequential action under protest and also challenged the show-cause notices which are sub-judice. From 23/3/2002, the appellant stopped paying the excise duty but paid Rs. 75331/- from 23/3/2002 to 13/9/2002 under protest. (ii) According to the appellant, a similar issue came up for consideration before the Apex Court in the case of West Coast Industrial Gasses Ltd. v. CCE - 2003 (155) ELT 11 (SC), in which the department appeal was dismissed on the issue of duty payable on containers/waste packages. The CBEC also clarified this issue vide circular dated 6/6/2003. (iii) On 3/4/2002 the appellant submitted an application seeking a refund of the excise duty with support of the account statements of all the concerned parties and the certificate issued by a buyer viz M/s Archana Industries, to the effect that they never paid excise duty to the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect that it has returned the excise duty recovered from M/s Archana Industries to it and thus has not recovered the excise duty from the said firm? 5. Learned counsel appearing for the appellant submits that the certificate issued by M/s Archana Industries and the certificate issued by the Chartered Accountant produced before the Learned Tribunal, establishes that no excise duty was paid to the appellant. The Chartered Accountant has also certified that the appellant has not recovered Rs. 4,45.825/- on account of excise duty on the sale of empty drums. The aforesaid certificate was issued based on the books of accounts of the Company. All Books and Accounts were produced before the Tribunal also but the learned Tribunal ignored and wrongly affirmed the order of the Adjudicating Authority and Commissioner of Appeal for transferring the amount of excise duty in the Consumer Welfare Fund. It is further submitted that even the amount shown in the invoices under the head of on account of excise duty on sale of empty drums were adjusted later on in the sale price. M/s Archana Industries did not pass on the aforesaid amount of excise duty to any other further customer or dealer. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appeal. Appreciation and conclusion 7. As per the finding given by the Dy. Commissioner i.e. Assessing Authority in its order dated 22/10/2003, no excise duty is chargeable on the packing material of input as per CEBC Circular No. 470/36/99-CX dated 19/7/1999 and the judgment passed by the Apex Court in West Coast Industrial Gases Ltd. v. CCE (Supra). The only issue for consideration before the Adjudicating Authority was whether the appellant had successfully rebutted the presumption that the incidence of duty was not passed on to the buyer under section 12B of the Central Excise Act. The adjudicating Authority examined various invoices which are also filed in this memo of appeal, reflecting that the appellant charged excise duty from M/s Archana Industries. The appellant is not denying this fact but submitted that those amounts paid as duty had been adjusted later on in sale consideration but in the considered opinion of all the authorities and learned tribunal burden has not bee duly discharged by the appellant. Initially, the sale price and excise duty were paid by way of cheques, thereafter the appellant started receiving by way of cash. Learned Dy. The commissioner hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dited to the consumer welfare fund if such amount is relatable to the duty excise paid by the manufacturer and he has not passed on the incidence of such duty to any other person. Even the buyer can apply for a refund. The sine qua non for the claim of refund, as contemplated under section 11B of the Act, is that the claimant has to establish that the amount of excise in relation to which such refund is claimed was paid by him and that incidence of such duty has not been passed on by him to any other person. S. 11B (2) provides that in case it is found that the part of the duty of excise paid is refundable, the amount shall be credited to the consumer welfare fund. Para 21 to 24 are reproduced below: 21. The sine qua non for a claim for refund as contemplated in Section 11-B of the Act is that the claimant has to establish that the amount of duty of excise in relation to which such refund is claimed was paid by him and that the incidence of such duty has not been passed on by him to any other person. Section 11-B (2) provides that, in case it is found that a part of the duty of excise paid is refundable, the amount shall be credited to the fund. Section 2 (ee) defines "fund" to m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cult for any consumer organisation to get the grant. There is no provision in the Act, Shri Nariman submitted, to locate the person really entitled to refund and to make over the money to him. "We expect a sensitive Government not to bluff but to hand back the amounts to those entitled thereto", intoned Shri Nariman. It is a colourable device - declaimed Shri Sorabjee - "a dirty trick" and "a shabby thing". The reply of Shri Parasaran to this criticism runs thus: It ill-becomes the manufacturers/Assessees to espouse the cause of consumers, when all the while they had been making a killing at their expense. No consumers' organisation had come forward to voice any grievance against the said provisions. Clause (e) of the proviso to sub-section (2) of Section 11-B does provide for the buyer of the goods, to whom the burden of duty has been passed on, to apply for refund of duty to him, provided that he has not in his turn passed on the duty to others. It is, therefore, not correct to suggest that the Act does not provide for refund of duty to the person who has actually borne the burden. There is no vice in the relevant provisions of the Act. Rules cannot be relied upon to impugn t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... practicable for all of them to go to the place of "removal" of goods and apply for refund. True it is that there is this practical inconvenience but it must also be remembered that such claims will be filed only by purchasers of high-priced goods where the duty component is large and not by all and sundry/small purchasers. This practical inconvenience or hardship, as it is called, cannot be a ground for holding that the provisions introduced by the 1991 (Amendment) Act are a "device" or a "ruse" to retain the taxes collected illegally and to invalidate them on that ground - assuming that such an argument is permissible in the case of a taxing enactment made by Parliament. (See R.K. Garg [(1981) 4 SCC 675 : 1982 SCC (Tax) 30 : AIR 1981 SC 2138] and other decisions cited in paras 87 and 88.)" (emphasis supplied) 24. That a consumer can make an application for refund is clear from paras 98 and 99 of the judgment of this Court in Mafatlal Industries (supra). We are bound by the said findings of a Larger Bench of this Court. The word 'buyer' in Clause (e) to proviso to Section 11-B (2) of the Act cannot be restricted to the first buyer from the manufacturer. Another submission whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
