Unicast P. Ltd. Vs. Commissioner of C. Ex.

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.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.....