TMI Blog2003 (9) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... claim was ultimately allowed by the Commissioner (Appeals), vide its Order dated 21-2-91, who held that the respondents were entitled to the benefit of Notification No. 123/89-C.E. during the period in question. The said Order of the appellate authority was accepted by the Revenue and no appeal was filed thereagainst. As a consequence of the said Order, the respondents filed a Refund Claim before the Assistant Commissioner. The said Refund Claim was adjudicated by the Assistant Commissioner who allowed the same on merits as also on limitation, but observed that inasmuch as the full incidence of duty has been passed on to the buyers, the respondents are not entitled to get the refund. The same was directed to be passed on to the Consumers' Welfare Fund. The respondents challenged the above Order of the Assistant Commissioner before the Commissioner (Appeals) who allowed their appeal, vide Order dated 22-10-99. Being aggrieved with the said Order, the Revenue filed an appeal before the Tribunal, which was disposed of vide Order No. A/499/CAL/2001, dated 5-7-2001. The matter was remanded to the Commissioner (Appeals) for examining the invoices of the respondents and to decide the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant period and submitted that inasmuch as the cement was sold at the agreed price and nothing else was charged from their customers and as there was no mention of a separate amount of duty on the invoices, the incidence of such duty has not been passed on to any other buyer. 5. As regards the average ex-factory price, it was contended that during the month prior to the relevant period, the cement was being sold at Rs. 1062.66, during the relevant period, the price was Rs. 1079.87 and during the month after the relevant period, it was Rs. 1052.49. As such, irrespective of the duty liability, the ex-factory price was constant before, during and after the relevant period. As such, it cannot be said that the respondents had recovered the duty amount from its customers. 6. During the course of arguments before the Commissioner (Appeals), reliance was also placed upon the various decisions of the Tribunal. The impugned order has recorded the same and we would like to reproduce the said judgments on which reliance has also been placed before us. They are as follows :- (a) CCE v. Maruti Udyog Limited reported in 2002 (141) E.L.T. 3 (S.C.) = 2002 (49) RLT 1 (Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and Clause (qq) read as under - "(qq) realises any amount as sales tax or purchase tax, where no sales tax or purchase tax is legally payable or in excess of the amount of tax legally payable under this Act, or" While interpreting the expression "realises any amount as sales tax or purchase tax", the Hon'ble Supreme Court held inter alia as under in Paragraphs 4 and 6 of the judgment - "As it is apparent from the provisions set out above, that the realisation must be by the dealer of the amount as sales tax or purchase tax where no sales tax or purchase lax was legally payable or in excess of the amount of tax legally payable under the Act. Therefore, it is necessary that realisation must be of the sales tax or purchase tax, secondly, that realisation must be in excess and thirdly the amount of tax should be legally payable under the Act. The High Court has construed the expression "as" in the beginning of the sub-clause as significant. Penalty is leviable for excess realisation of tax, therefore, realisation of the amount should be as tax and not in any other manner. Then excess should be over and above the amount of tax legally payable. This expression obviously means tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 1996 (82) E.L.T. 95 (CEGAT) (CCE v. Metro Tyres Ltd.) - In this decision it was, inter alia, held by the Hon'ble Tribunal that the burden to prove that incidence of duty was not passed on to the buyers is sufficiently discharged by the assessee when the assessee's invoices during the material period were showing a composite price and duty was not indicated separately. Against the said order of the Tribunal the Department filed an appeal before the Hon'ble Supreme Court who dismissed the same as reported in 1997 (94) E.L.T. A51. (e) 1995 (80) E.L.T. 410 (CEGAT) (CCE v. Metro Tyres Limited) - In this decision it was, inter alia, held by the Tribunal that when the assessee's invoices during the material period showed a composite price and duty was not indicated separately and when the selling price before as well as after the relevant period remained more or less the same, it is obvious that the incidence of duty/higher duty was not passed on by the assessee to the buyers. (f) 2000 (126) E.L.T. 1061 (T) = 1999 (32) RLT 238 (CEGAT) - CCE v. Pawan Tyres (P) Ltd. - In this matter, after considering earlier decisions on the issue, the Hon'ble Tribunal was pleased to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt that when special leave petition is dismissed this Court does not comment on the correctness or otherwise of the order from which leave to appeal is sought. But what the Court means is that it does not consider it to be a fit case for exercise of its jurisdiction under Article 136 of the Constitution. That certainly could not be so when appeal is dismissed though by a non-speaking order. Here the doctrine of merger applies. In that case, the Supreme Court upholds the decision of the High Court or of the Tribunal from which the appeal is provided under clause (3) of Article 133. This doctrine of merger does not apply in the case of dismissal of special leave petition under Article 136. When appeal is dismissed order of the High Court is merged with that of the Supreme Court." 7. The Commissioner (Appeals) while dealing with the respondents' contentions, has observed as under :- "9. I have gone through the impugned order and the submissions of the appellant. I find that in the invoices the appellant has charged "rate per M/T". In addition, Sales Tax and O.A.S.T. (Orissa Additional Sales Tax) have been charged separately. All the invoices included in the paperbook are in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods sold and had not sought to realise any sum towards duty from the buyers. The buyers did not pay to the appellant any amount as or towards C.E. duty. I find that such cases are fully covered by ratio of the decisions relied by the appellant. One of the said decisions in the case of Metro Tyres Ltd. was also approved by the Hon'ble Apex Court by dismissing the Civil Appeal filed by the Collector of Central Excise as stated in Para 8(d) above. As has been correctly argued by the Advocate of the appellant, when the Civil Appeal filed by the Collector was dismissed by the Hon'ble Apex Court, the same operates as a binding precedent of the Hon'ble Apex Court under Article 141 of the Constitution and due to dismissal of Civil Appeal CEGAT's decision got merged in the order of the Hon'ble Apex Court. This position is now well settled by the judgment of the Hon'ble Apex Court in case of V. M. Salgaocar Bros. Relevant extracts from this judgment have already been set out in Para 8(i) above. For these reasons I hold that the appellant has fully established that incidence of refundable amount was not passed on by it to the buyers. I therefore set aside the Assistant, Commssioner's ..... X X X X Extracts X X X X X X X X Extracts X X X X
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