ORDER
S.S. Sekhon, Member (T)
1. Revenue has filed for stay of operation of order-in-appeal passed by the Commissioner (Appeals) on the grounds:-
“In the invoices issued by the assessee it is observed that a composite value is arrived at by multiplying the “rate & quantity” and that the invoices bears a note to the effect that “Invoice value does not include the Excise Duty amount since the cinder are Non-Excisable commodity. However duty paid under protest has not been recovered from the party.”
On scrutiny of the invoices it is seen that the quantum of Central Excise duty paid by the assessee is already included in the composite value, by inflating the composite value to the extent of duty element, which proves that the assessee has recovered the duty element form their customers and any refund on this count would amount to unjust enrichment. Thus, the Order-in-original passed by the Assistant Commissioner, crediting the refund amount to the Consumer Welfare fund is legally correct.
On verification of the Profit & Loss Account for the relevant period it is noticed that the Central Excise duty is shown as expenditure & taken as cost of product, means the incidence of Central Excise duty is passed on to the consumer. The note 4 in schedule 23 is not showing specific entry that C.Ex duty is recoverable form the Central Excise department.
On verification of the Balance Sheet for the period 1998-1999 it is observed that nothing is mentioned about the Central Excise duty in dispute, however in the schedule 23 to the balance sheet at Clause (b) under the head “Contingent liabilities not provided for” provision is made in respect of “disputed modvat and other Central Excise duty” however specific entry is not made.
On the basis of the above it is clear that the duty burden in passed on to the Consumer.
2. A perusal of the Order indicate that the Commissioner has observed that refund had been sanctioned by the Asst. Commissioner since CEGAT had not upheld the departments contention & duty was paid under protest. The Commissioner has given a detailed finding as to then the bar of “unjust enrichment would not apply in this case since he find ‘incidence of duty was not giving the part of the price”.
3. After hearing both sides and considering the issues, it is found that Revenue has not made out a prima facie- case in its favour to induce the exercise of the powers to grant stay of the Refund Order by Commissioner (Appeals). Stay application made is dismissed. Matter to be listed in due course.
(Pronounced in Court)