ORDER
S.S. Kang, Member (J)
1. Revenue filed this appeal against the order-in-appeal dated 5-11-1998 passed by the Commissioner of Central Excise (Appeals).
2. Brief facts of the case are that the appellants filed a refund claim and the adjudicating authority sanctioned the refund claim of Rs. 5,83,512.78 under Section 11B of the Central Excise Act, 1944 and ordered the same to be paid to Consumer Welfare Fund. Against this order, the respondents filed appeal and the Commissioner (Appeals), in the impugned order, held that the respondents had proved that the incidence of duty had been passed on to the customers. Therefore, the refund is admissible to the appellants and not to the Consumer Welfare Fund.
3. Revenue filed this appeal against the order of the Commissioner (Appeals) granting refund to the respondents.
4. Ld. D.R., appearing on behalf of the Revenue, submits that as per the provision of Section 12B of the Central Excise Act, the incidence of duty of excise of any goods be deemed to have been passed on to the buyer unless the contrary is proved. He submits that the selling price remains the same, is not a proof that the higher duty has not been charged. The selling price is the aggregate of a number of elements, one of which is excise duty. Therefore, even if the total selling price remains the same, the excise duty component can be increased by reducing profit margin since the goods are being sold in the competitive market. He relies upon the decision of the Tribunal in the case of Esprit Switchgear Pvt. Ltd. v. C.C.E. reported in 1996 (87) E.L.T. 660. He, therefore, prays that the appeal be allowed.
5. Ld. Counsel, appearing on behalf of the respondents, submits that the respondents have produced all the sale invoices covering the period of refund and prior to that to show that the price charged from the buyers is uniform and also produced the certificate from the Chartered Accountant to this effect. He, further relies upon the decision of the Tribunal in the case of C.C.E. v. Metro Tyres Ltd. reported in 1995 (80) E.L.T. 410 (Tribunal). He submits that this decision was followed by the Tribunal in subsequent case reported in 1996 (82) E.L.T. 95 and the appeal filed by the revenue against this decision is dismissed by the Hon’ble Supreme Court reported in 1997 (94) E.L.T. A51. He submits that the above decisions of the Tribunal were, further, followed in the case of C.C.E. v. Pawan Tyres (P) Ltd. reported in 1999 (32) R.L.T. 238 (CEGAT). He submits that as the Tribunal is consistently taking the view that the invoices during the material period showing the composite price and duty not indicated separately, itself is sufficient to show that incidence of duty has not been passed on to the customers. He, therefore, prays that the appeal be dismissed.
6. Heard both sides.
7. In this case, the issue is whether the respondents have discharged burden that incidence of duty has not been passed on to the customers. The contention of the respondents is that the invoices were showing the composite price of the goods and the price of the goods remained the same during the period in question and prior to that. The Tribunal in the case of C.C.E. v. Metro Tyres Ltd. (supra) on similar facts, held that the assessees’ invoices during the material period showing the composite price and duty not indicated separately, itself is sufficient to show that incidence of duty has not been passed on to the customers. This view was followed by the Tribunal in another case i.e. C.C.E. v. Metro Tyres Ltd. reported in 1996 (82) E.L.T. 95 and the appeal filed by the revenue against this decision, was dismissed by the Hon’ble Supreme Court reported in 1997 (94) E.L.T. A 51. In view of the settled position of law, as discussed above, I find no infirmity in the impugned order. The appeal filed by the revenue is rejected.
