ORDER
Gowri Shankar, Member (T)
1. In the order impugned in the appeal, the Collector (Appeals) has confirmed the finding of the Assistant Collector that the assessee has not established that it did not pass on the incidence of duty paid by it on paper waste and plastic scrap manufactured by it and cleared to customers.
2. Advocate for the appellant says that the plastic waste and scrap were not dutiable prior to 1986. From 1-3-1986 they became liable to duty. He says that the appellant’s efforts to pass on the duty burden to customers by increasing the price to the appropriate extent met with resistance by such customers. Therefore, the appellant decided to absorb the duty element by reducing its profit margin. It therefore reduced the assessable value and added the duty element i.e. Rs. 14.70 per kg but paid the duty itself.
3. The Assistant Collector had not accepted this claim. He said that since the assessable value of Rs. 9.12 per kg had already been approved and the duty paid on it was collected from the customers it cannot be considered. There is no dispute on the fact that duty had been paid by the appellant. If the duty burden was in fact passed on to the customers, it would followed, there being no change in any of the other variables, that the wholesale price would go up to the extent of the duty. That has not happened. Wholesale prices remained the same. Therefore, any extra burden caused by the duty has been absorbed by the assessee and had not been passed on. Accepting the Assistant Collector’s logic, it would follow that in every case where duty is paid it will have to be concluded that the incidence of duty has been passed on.
4. I cannot however finally decide the matter because the appellant was not able to show that its wholesale price before duty was paid was the same as subsequently. I therefore allow the appeal and remand the matter to the Assistant Commissioner before whom the assessee to show that the incidence of duty has not been passed on to the customers. The Commissioner shall after considering the submissions and in the light of the views expressed above decide the issue according to law.