ORDER
R. Jayaraman, Member (T)
1. This appeal is against the above order of the Collector (Appeals). The issue relates to refund of central excise duty paid on the goods manufactured and cleared by the appellants. Two objections have been raised. One relates to the ground of time bar and another on the ground of unjust enrichment. Refund is yet to be sanctioned by the Assistant Commissioner. In the circumstances, it would appear that as per the decision of the Supreme Court in the case of U.O.I. v. ITC – 1993 (67) E.L.T. 3 (SC), the Assistant Commissioner is entitled to go by the amended provision of Section 11B of the Act for considering the refund claim. However, Shri N.K. Arora the ld. C.A. pleads by referring to a statement on the basis of 4 invoices to show that the cum duty price remained the same both during the period of payment of duty at 15% as well as during the period they were required to pay duty at the rate of 10%. On this ground, he pleads that when the cum duty price remains the same, it has to be held that the duty incidence has been borne by the appellants and has not been passed on to the consumer. Hence even as per the amended provision of Section 11B of the Act, refund is payable to them.
2. Ms. Bharati Chavan, the ld. JDR however pleads that the duty element charged from the customer is not shown in the invoice. The statement only shows the adjustment of their assessable value so as to show that the final sale price is the same both before and after the variation in the rates of duty. This cannot help the appellants because as per the law, the burden is cast on them to show that the increased duty burden borne by them has not been passed on to the consumer.
3. After hearing both the sides, I find that no conclusion in their favour can be arrived at on the basis of the statement made on the basis of four invoices. Be that as it may, according to law, as amended, the assessee is required to show the excise duty element separately and credit the excise duty so collected to the Government. The burden is also cast on them to establish that the duty so collected has not been passed on to the consumer. There is no dispute that the item is consumer product and the duty element is not indicated separately in the invoices. Merely because they have maintained the same cum duty price, it cannot be concluded that they have borne the higher duty incidence without passing it on to the consumer. It can only raise a presumption, but refund cannot be granted on such presumption.
In the circumstances, I find no reason to interfere with the orders passed by the authorities below. Appeal is therefore dismissed.