UNION OF INDIA Vs. N.G. THAKKAR

JUDGEMENT

(1.) THIS appeal was admitted on 24th August, 2005 on the following question of law: -

(2.) BY an adjudication order dated 22 -5 -2001, the Commissioner of Central Excise held that the process of compounding asafoetida constitutes manufacture and, therefore, on clearances of compounded asafoetida central excise duty is payable under Heading 13.01 of the Central Excise Tariff. Challenging the aforesaid order, the assessee filed an appeal before the CESTAT and the Tribunal by its order dated 6 -3 -2002, held that the production of compounding asafoetida does not involve manufacturing process and hence no excise duty could be levied on clearances of compounded asafoetida. We are informed the S.L.P. filed by the revenue against the decision of the CESTAT dated 6 -3 -2002 has been dismissed. Thus, the order of the Tribunal holding that no excise duty was payable on clearance of compounded asafoetida had attained finality.

(3.) BY an order in original dated 13 -11 -2002 the adjudicating authority rejected the refund claim on the ground that the assessee's invoices were not showing composite price but assessable value and duty have been shown separately. It was held that when the excise duty has been shown separately in the invoices, it has to be treated that the burden of excise duty has been passed on the customers and hence refund is not admissible. The adjudicating authority further held that though the assessee had kept the sale price constant, the assessee had collected the excise duty from the buyer and the same has been shown as deposit in the balance sheet. Since the assessee had passed on the duty liability to the customers, the adjudicating authority held that the assessee was not entitled to the refund.