ORDER
K.C. Mamgain, Member (T)
1. Heard both sides.
2. The appellants filed this appeal against the order-in-appeal passed by the Commissioner (Appeals-II), where the refund claim filed by the appellants was rejected on the ground of unjust enrichment.
3. The brief facts of the case are that the appellants are manufacturing “Sunfill” a fruit flavoured drink mix and they were claiming the goods to be classified under sub-heading 2108.99 of the Central Excise Tariff Act where they were entitled for 40% of the abatement from the MRP whereas the Revenue for the period, November 2001 to June 2003, directed them to clear the goods under sub-heading No. 2108.20 of the Central Excise Tariff where they were entitled for 35% of the abatement from the MRP, The appellants filed the refund claim on the ground that subsequently, the Revenue accepted their claim under Heading No. 2108.99 of the Central Excise Tariff. The contention is that during the period in dispute, the appellants were paying duty under protest and there was no order, of provisional assessment. Therefore, they are entitled for the refund. The contention of the appellants is that they have proved on record that burden of duty has not been passed on to their customers. The appellants produced copy of one sample invoice where the excise duty was paid under protest. The appellants relied upon the decisions of the Tribunal in the case of Honda Siel Power Products Ltd. v. CCE, Meerut reported in [2004 (169) E.L.T. 201 (Tribunal-Delhi)], in the case of Uniproducts (India) Ltd. v. CCE [2004 (170) E.L.T. 299 (Tribunal) = 2004 (62) RLT 615 (Tribunal)] and in the case of Panyam Cements & Minerals Ltd. v. CCE [2004 (177) E.L.T. 357 (Tribunal) = 2004 (64) RLT 697 (CESTAT-Bang.)].
4. The contention of the Revenue is that the appellants were manufacturing goods for M/s. Coca Cola India Pvt. Ltd. and M/s. Coca Cola India Pvt. Ltd. authorised the appellants under Notification No. 27/92-C.E., dated 9-10-1992 to comply with the procedural formalities under Central Excise Act and Rules in respect of the goods manufactured on behalf of M/s. Coca Cola India Pvt. Ltd. The contention is that the duty was paid by M/s. Coca Cola India Pvt. Ltd. therefore, M/s. Coca Cola India Pvt. Ltd. are entitled for the refund and M/s. Coca Cola India Pvt. Ltd. is to show that burden of duty has not been passed on to the customers.
5. We find that, in this case, the appellants were manufacturing the goods in question on behalf of M/s. Coca Cola India Pvt. Ltd. and they have also complied with the procedural formalities under Central Excise Act & Rules as per provisions of Notification No. 27/92-C.E. (N.T.). The appellants paid duty on behalf of M/s. Coca Cola India Pvt. Ltd. even the duty was paid under protest, the appellants are to prove that burden of duty has not been passed on to the customers as per the decision of the Hon’ble Supreme Court in the case of M/s. Mafatlal Industries reported in [1997 (89) E.L.T. 247 (S.C.]. It is the case of the appellants that they had paid the duly on behalf of M/s. Coca Cola India Pvt. Ltd. As M/s. Coca Cola has paid the duty, therefore, it is to be proved on record by M/s. Coca Cola to show that burden of duty, now claimed in the refund claim, has not been passed on to their customers. The appellants filed some affidavits stating therein that the burden of duty has not been passed on and also relied upon the aforementioned decisions of the Tribunal. In the case of M/s. Uniproducts India Ltd. relied upon by the appellants, we find that after taking into consideration the facts of that case, the Tribunal came to the conclusion that burden of duty has not been passed on to the customers. Similar is the case in case of Honda Siel Power Products and in case of Panyam Cements & Minerals Ltd. relied upon by the appellants, in which matter is remanded to the adjudicating authority to decide afresh in view of the evidences produced by the assessee. In the present case as the appellants is to prove that burden of duty has not been passed on to their customers. The duty has been paid by M/s. Coca Cola and we find that mere filing of affidavits stating burden of duty has not been passed on to their customers can not help the case of the appellants. Whether the appellants have passed on the burden of duty to their customers is to be proved by producing documentary evidence. In the present case, the appellants have failed to prove that burden of duty has not been passed on to their customers. We find no merit in his appeal and the same is dismissed.