Judgment:
1. The appellants manufacture acrylic yarn falling under Chapter 55.
They filed refund claims for a total amount of Rs. 18,01,955 in respect of the excise duty paid for the period from April 1999 to December 1999. The refund claims were filed on the ground that the goods manufactured by them were sold at lower prices from their Ludhiana and Delhi depots in comparison to the prices declared and at which the duty was paid at the time of clearance from the factory on stock transfer basis to the respective place of removal. The Deputy Commissioner of Central Excise Division, Bhiwadi has examined these claims and passed a speaking order dated 23.3.200C. He in his order has observed that the contention of the party that the goods were sold at lower prices stand substantiated and they are entitled for refund of duty on merits. He has further observed that in terms of the provisions of Section 11B of Central Excise Act, 1944 every application for refund shall be accompanied by such documentary or other evidence to establish that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by him and the incidence of such duty had not been passed on by him to any other person. He has observed that Section 12A requires that every person who is liable to pay duty of excise on any goods shall, at the time of clearance of the goods prominently indicate in all the documents relating to assessment and sale invoice that the amount of such duty which form a part of the price at which such goods are to be sold; that Section 12B further stipulates that every person who has paid the duty of excise on any goods shall, unless, the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods.
It is observed that in the present case, the prices charged from the buyers have been claimed as all inclusive including the excise duty and sales tax etc.; that relevant sale invoices raised at depots do not separately mention the excise duty included in the price of goods. He has therefore held that the amount of duty paid has been passed on to the buyers in respect of the invoices which show composite price. The Deputy Commissioner in his order has relied on the judgment of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. v. UOI, 2002 (83) ECC 85 (SC) : 1997 (89) ELT 247 (SC) in which it is held that in cases where, invoice does not separately show duty element, it cannot be held that the manufacturer is not passing on incidence of duty to the customer nor does it flow therefrom that the manufacturer is absorbing the duty himself. It is also observed that the assessee has not been able to produce any evidence other than the sale invoices to support their argument that the burden of duty excess paid by them at the time of removal of goods from the factory, has been borne by them or for that matter has not been passed on to the buyer of goods.
Accordingly, he has rejected the refund claims on the ground that unjust enrichment in terms of Section 11B.2. The party filed an appeal but the same is rejected by the Commissioner (Appeals), Jaipur vide his order dated 7.12.2000.
3. This is an appeal against the impugned order of Commissioner (Appeals). Today when the matter is called, the appellants are not represented. Shri Y.S. Arora Advocate appearing as proxy counsel for Shri Harban Singh, Advocate has filed a letter on behalf of the Advocate of the appellant in which it is stated that due to health reason he is unable to appear and, therefore, the hearing may be adjourned to some other date. It is observed from the records that the matter stood adjourned on two earlier occasions viz. 15.4.2002 and 15.5.2002--both the dates at the request of the appellant but on neither of the dates, Shri Harban Singh, Advocate made appearance. We, therefore, do not see any reason to adjourn the matter any further.
Accordingly, we have heard Shri M.M. Dubey, JDR for the respondent. We have considered the submissions made before us and also perused the documents on records. We extract below the findings of lower appellate authority in the impugned order, "Section 12A of Central Excise Act, 1944 required that element of duty should be prominently Indicated in all documents relating to assessment, sale invoice and other like documents. Since sales has been effected from depot, the appellants were required to show the element of duty on the depot sales invoices which has not been done and hence it cannot be said that element of duty has not been passed on in full. Further, I observe that the appellants have also failed to produce any evidence which could prove that the burden of duty paid in excess was borne by them and since the said invoices do not separately show the duty element. It is difficult to accept that the appellants has not passed on incident of duty to customers. I find that the appellants have failed in satisfying the clause of unjust enrichment. In view of the above, the refund claim has rightly been rejected by the adjudicating authority. Accordingly, I uphold the impugned order".
5. We fully agree with the above findings as also those arrived at in the order of the Original Authority. The appellants have not indicated the duty element separately in their invoices which is mandatory under Section 12A. The appellants have, therefore, failed to rebut the statutory presumption held against them under Section 12B. We find no merit in this appeal and the same is accordingly rejected.