ORDER
C.N.B. Nair, Member (J)
1. The appeal relates to denial of refund on the ground that the assessee has failed to satisfy the requirement relating to unjust enrichment. The contention of the assessee was that the price remained the same fox” the goods prior to the period of payment of duty and during the period of payment of duty. During the hearing of the case, learned DR has placed reliance on the decision of the Supreme Court in the case of CCE, Mumbai-II v. Allied Photographies India Ltd. , in support of his contention that price being same is not sufficient satisfaction. Reliance has specifically been made on the following observation in para 18 of the judgment which is reproduced herein below:
18 Before concluding, we may state that uniformity in price before and after the assessment does not lead to the inevitable conclusion that incidence of duty has not been passed on to the buyer as such uniformity may be due to various factors. Hence, even on merits, the respondent has failed to make out a case for refund. Since relevant factors stated above have not been examined by the authorities below, we do not find merit in the contention of the respondent that this Court should not interfere under Article 136 of the Constitution in view of the concurrent finding of fact.
2. Ld. DR has also placed reliance on the decision of this Tribunal in the case of CCE Ahmedabad v. Gopi Synthetics Ltd. , wherein in para-11 the Tribunal observed as under:
11. We also observe that the invoices produced before the Commissioner (Appeals) to say that the incidence of duty has not been passed on do not support the contention of the respondents. The Tribunal in Christine Hoden v. CCE held that the invoices which show the same price before and after the excess duty is paid do not indicate that the incidence of duty has not been passed on. The Tribunal held that it may be a case of passing on a part of their profit to the buyer and not the incidence of duty itself. This decision is based on the Apex Court’s ruling in Mafatlal Industries case. Para 91. Keeping the ratio of this decision in mind, we observe that the respondents’ plea that the invoices tendered before the Commissioner (Appeals) do indicate that the incidence of duty has not been passed on, does not stand. It, therefore, does not serve any purpose to remand the case back to the Deputy Commissioner. It would serve some purpose if the respondents succeeded in showing that they have not passed on the incidence of duty to their buyers. Such is not the case here.
3. As against this, the contention of the learned Chartered Accountant is that when the refund claim is by a manufacturer, uniformity in price before and after the period of taxation would be sufficient evidence in view of the following observations contained in para 17 of the Apex Court’s judgment in Allied Photographies India Ltd. (supra) as under:
…It was submitted that since the sale price of the goods before and after the assessment remained the same the burden of excess duty was absorbed by the respondent. It was submitted that in any event the sale price of the goods increased much less than the amount of duty (differential) involved in this case and, therefore, incidence of duty was not passed on to the customers. In this connection, reliance was placed on several judgments of the Tribunal. We have gone through these judgments. They are not applicable to the facts of this case. In the present case, we are concerned with the distributor buying the products from the manufacturer and reselling them to its dealers. Hence, the cost of purchase is a relevant factor. The facts of the cases before the Tribunal deal with sale by manufacturer to the consumer. They deal with assessees’ invoice bearing a composite price. They are the cases which dealt with the claim of refund by the manufacturer. They did not deal with claim of refund by the buyer. Hence, they have no bearing on the facts of the present case.
4. Ld. Counsel has also placed reliance on the decision of this Tribunal in the case of CCE Kanpur v. Corona Cosmetics & Chemicals (P) Ltd. , in particular, para–7 of the judgment which is reproduced below:
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 CCE 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 indigence of duty has not been passed on to the customers. This view was followed by the Tribunal in another case i.e. CCE v. Metro Tyres Ltd. and the appeal filed by the revenue against this decision, was dismissed by the Hon’ble Supreme Court reported in 1997 (94) ELT 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.
5. There appears to be conflict of views between the decision of the Tribunal in the case Gopi Synthetics Ltd. (supra) and Corona Cosmetics and Chemicals (supra) and Ors. cases. The file may, therefore, be placed before the Division Bench for deciding whether the issue is required to be considered by a Larger Bench or the judgements are distinguishable.
(Dictated and pronounced in open Court)