Posted On by &filed under Customs, Excise and Gold Tribunal - Delhi, Tribunal.


Customs, Excise and Gold Tribunal – Delhi
Unicast P. Ltd. vs Commissioner Of C. Ex. on 25 August, 2000
Equivalent citations: 2000 (122) ELT 734 Tri Del


ORDER

Jyoti Balasundaram, Member (J)

1. The brief facts of the case are that the appellants herein filed a claim for refund of Rs. 9,60,510/- on 17-4-1995 on the ground that the goods manufactured and cleared by them viz. PVC bars channels, etc., fell for classification under Headings attracting lower rate of duty than what was paid by them under different Headings of the Schedule to the CETA 1985. The Assistant Commissioner held that the claim was admissible on merits but directed transfer to the credit of the Consumer Welfare Fund established under Section 12C of the Act, on the ground that the appellants were not entitled to the amount since they had already passed on the duty burden to their customers and hence hit by the bar of unjust enrichment enshrined in Section 11B of the Act. The Commissioner (Appeals) upheld the adjudication order holding that the appellants did not produce any information/document to substantiate their claim that they had not passed on the duty burden. He, however, noted their submission that on 2-8-1995, they had written to the Assistant Commissioner stating that their customer had raised a debit note for the entire duty amount, thereby showing that the duty burden was borne only by the appellants themselves and had not been passed on to the customers. Hence this appeal.

2. We have heard Shri Manjeet Singh Gupta, learned Counsel and Shri Ashok Kumar, learned DR.

3. We note that in the case of Collector of Central Excise, Madras v. Addison and Co. reported in 1997 (93) E.L.T. 429, the Tribunal has held that issue of debit notes subsequently by customers of the assessee is not material once the duty burden has been passed on by an assessee at the time of clearance of goods. Reliance placed by the learned Counsel upon the Tribunal’s decision in the case of Commissioner of Central Excise v. Oswal Cotton Spinning Mills reported in 1999 (108) E.L.T. 841 wherein it was held that presumption of passing on the duty burden to the buyers is rebutted by issue of debit notes by customers, is distinguishable, since in that case, the debit notes were issued from time to time and further the relevant entries in ledgers maintained by the respondents therein also showed that the duty amount was outstanding from their buyers.

4. The ratio of the Tribunal’s decision in the case of Addison and Co. is squarely applicable to the facts of the present case and following the same, we uphold the impugned order and reject the appeal.


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