Full Judgment
2. The brief facts are that on 6-2-2001 the Additional Commissioner of Central Excise dropped the proceedings under show cause notice dated 17-6-1998 which proposed recovery of Central Excise duty of Rs. 1,06,827/-on pre-recorded video cassettes manufactured and cleared during the period March to December, 1997 and proposed penal action against M/s. Shethia Audio Video Pvt. Ltd. Proceedings were dropped by him on the ground that: (b) there is no manufacturing activity involved in the duplication/ recording of video cassettes from master cassettes to blank cassettes.
3. On 12-03-2001 the company filed the claim for refund which was decided by the Dy. Commissioner of Central Excise in their favour on merits, but however, the Dy. Commissioner held that the company had failed to produce substantial documentary evidence to establish that the amount for which refund was claimed was not collected from their customers, in spite of producing the certificate from the Chartered Accountant, to the effect that they had not passed on the burden to their customers.
4. In the meanwhile the Revenue had filed an appeal against the Additional Commissioner's order dated 06-02-2001 and this was decided by the Commissioner (Appeals) vide his order dated 31-07-2002, rejecting the Revenue's appeal by upholding the adjudication authority's order on the point of limitation. Against the Dy.
Commissioner's order dated 31-08-2001 the company went up in appeal to the Commissioner (Appeals) who passed the following order: "6. I have carefully considered the facts on record, findings in the impugned order and the submissions made by the appellants in defence of their claim for eligibility to subject refund. It is evidenced on record that the subject dispute relates to the period between March, 1997 to December, 1997. At the relevant time, appellants had not obtained any registration from Central Excise authorities and, therefore, the question of discharge of Central Excise duty does not arise on the disputed clearance. Also, it is reported in the impugned order that the said amount of Rs. 1,06,826/- was paid by the appellants on TR-6 Challan No. 5/97-98, dated 15-1-98, which is a date later to the said disputed clearances made by the appellant.
7. Accordingly, I find that the question of any recovery towards Central Excise duty on the said clearance automatically becomes redundant unless evidence is shown that these were subsequently recovered from the buyers. In additional support that no Central Excise duty pertaining to the said disputed amount, subsequently paid by the appellants after clearance of the goods, was collected from their buyers, and paid by the buyers, is also evidenced from the certificate given by Chartered Accountant. In the said position on facts, unless any proof to the contrary existed on record, there is no basis to disallow refund on ground of unjust enrichment." He set aside the order of the Dy. Commissioner and allowed the appeal of the company. Hence this appeal and stay application by the Revenue.
5. According to the Revenue the Commissioner (Appeals) ought not to have sanctioned the claim by accepting the Chartered Accountant's certificate as this was not sufficient for the purpose of establishing that the burden of duty had not been passed on by the respondents to their customers. The Revenue's contention is that further documentary evidence is required. The other contention in the appeal is that the Commissioner (Appeals) has erred in holding that question of discharge of duty on the disputed clearances does not arise because during the period in dispute the respondents had not obtained any registration from the Central Excise authorities.
6. While agreeing with the Revenue that the question of payment of duty is linked with manufacture and does not depend upon the registration of a manufacturer with the Central Excise authorities, we agree with the findings that the material produced by the respondent before him in the form of Chartered Accountant's certificate was sufficient for satisfaction that the duty burden which was discharged on a subsequent date to the clearances, was not passed on to the respondent's buyers.
No material has been produced before us to show anything to the contrary.
7. We therefore uphold the impugned order relating to the acceptance of the refund claim and reject the appeal of the Revenue.