DENA SNUFF (P) LTD. Vs. CCE

JUDGEMENT

(1.) THE Commissioner (Appeals) in the impugned order had held that "I have gone through the refund claim. It is evident that claim is not based on the Order of the CEGAT passed in the appellant's case. It was, therefore, proper for the appellant to get the classification of their product decided first on the basis of the Order of CEGAT. Once the classification had been decided by the Assistant Collector under CET sub -heading No. 2404.60 based on the Order of the CEGAT in the case of Lachman Dass Bihari Lal [1995 (57) ECR 168 (T)] the appellant could have filed the refund claim. The appellant has not done so. The appellant has also not separately shown Central Excise duty charged from the customers/buyers. Accordingly he cannot conclusively say that the Central Excise duty incidence has been borne by him and not by the buyers. There is no evidence on record to show that the incidence of Central Excise duty has been borne by the appellant. Therefore, the refund claim has been rightly rejected by the Assistant Collector." The facts of the case are that the appellants are engaged in the manufacture of snuff of tobacco. There was a classification dispute whether the product manufactured by diem would be classifiable as snuff of tobacco under CET subheading No. 2404.50 or as a preparation containing snuff of tobacco in any proportion under CET sub -heading No. 2404.60. The appellants had been paying duty under CET sub -heading No. 2404.50 as approved by the department during the period from 25.8.1990 to 26.2.1994. A similar product manufactured by M/s. Lachman Dass Bihari Lal of New Delhi was ordered for classification under CET sub -heading No. 2404.60 by CEGAT vide Order No. E/103 -104/94 -D dated 18.2.1994 reported in, 1994 (71) ELT 728 (T) :, 1995 (57) ECR 168 (T). The appellants filed a refund claim of Rs. 40,59,531.71 for the duty paid in excess for the aforesaid period. They had been paying duty under protest. This refund claim was rejected by the Assistant Collector on the ground that sales invoices and the other records produced by the appellants indicated that the total price of the goods inclusive of taxes had remained the same during the full period under consideration. There is no evidence which could prove that the appellants had paid duty themselves and had borne incidence of duty and not charged the same from the customers/buyers. It was held by the lower authorities that since the appellants failed to prove the same from any documentary evidence or otherwise the refund claim was rejected and hence the appeal before us.

(2.) SHRI J.S. Agarwal, learned Advocate appearing for the appellants submits that the appellants had relied upon the Order of CEGAT in the case of M/s. Lachman Dass Bihari Lal of New Delhi; that the Assistant Collector held that this Order of CEGAT is in personam and not in rem. The learned Advocate submits that their case was fully covered by the judgment of this Tribunal in the case of Metro Tyre Limited reported in : 1995 (80) ELT 410 :, 1995 (61) ECR 355 (T) wherein this Tribunal held that for the purpose of proof that incidence of duty/higher duty was not passed on to customers can be verified if the assessees' invoices during the material period showing a composite price and even when duty is not indicated separately; that the sale price of the goods before as well as after the event remained the same, the price even when increased, went up by an amount much less than the amount of duty/differential involved; that conclusion is obvious that incidence of duty/higher duty was not passed on to the customers for the purpose of Section 11B(2)(d) and 11C(2) of the Central Excises and Salt Act, 1944.

(3.) THE learned Counsel also cites and relies upon the decision of this Tribunal in the case Kamla Gudakhu Factory v. CCE, Jamshedpur reported in, 1997 (20) RLT 537 :, 1997 (70) ECR 558 (T). In this case, the Tribunal held that the goods sold at the same old price on increase in the rate of excise duty, without indicating excise duty separately in the invoice, refund is admissible as differential duty incidence not passed on to the customer in such a situation. The learned Counsel submits that the facts in their case were identical to those dealt with by this Tribunal and the Hon'ble Madras High Court in the cases cited above and therefore prays that since the ratio of these decisions fully covered their case, the appeal may be allowed.