Commissioner of Central Excise Vs. Cadila Veterinary Co.

Commissioner of Central Excise vs Cadila Veterinary Co.

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai Decided Jul 21, 2003

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Citation: sooperkanoon.com/31656
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Judge: S T Gowri, A Wadhwa
Decided On: Jul 21, 2003
Subject: Land Acquisition

Case Summary

AI-generated summary - not the official court judgment text.

Land Acquisition

Key legal issue: Land Acquisition

Parties & Advocates

Appellant / Petitioner

Commissioner of Central Excise

Respondent

Cadila Veterinary Co.

Excerpt

.....in these two appeals by the commissioner is whether the incidence of the duty paid in excess by cadila veterinary co., the respondent to these appeals, which is claimed as refund has not been passed on as required under sub-section (2) of section 11b of the act.2. the claims for refund were rejected by the deputy commissioner on the ground that it has not been shown that the incidence of duty has been passed on. the claimant appealed this order and made various submissions before the commissioner (appeals). the commissioner (appeals) asked for a report to be furnished by the jurisdictional deputy commissioner on the submissions that the assessee made, and acting on the report that he furnished, has held that the incidence of duty has not been passed on.3. in paragraph 6 of his common order, the commissioner (appeals) says that the report of the deputy commissioner makes it "crystal clear" that the incidence of duty has not been passed on. the deputy commissioner's report does not lead, in our opinion, to any such conclusion. his report dated 5.7.2002, after dealing the member of team, who carried out the verification, and indicting broadly what verification was undertaken has summarised four conclusions which is that emerged. the third conclusion read as follows: "that, on scrutiny it is revealed that in the gp1s the assessable value is arrived at by showing the rate per unit as less 10% of the price indicated in the commercial invoice and duty is discharged accordingly. however, in the commercial invoice issued to their distributors 20% discount is passed on to the buyer whereas in case of direct sales they are passing on discount to the tune of 12.5%, 12%, 10% and 8% respectively. also the appellants vide their letter dtd. 05.7.2002 have admitted that in certain cases the rate charged in sales invoice is higher than the gp1 and an excess amount of rs. 1,83,274/- is collected from the buyers. in view of the above refund claim is required to be reduced.....

Full Judgment

1. The common question for consideration in these two appeals by the Commissioner is whether the incidence of the duty paid in excess by Cadila Veterinary Co., the respondent to these appeals, which is claimed as refund has not been passed on as required under Sub-section (2) of Section 11B of the Act.

2. The claims for refund were rejected by the Deputy Commissioner on the ground that it has not been shown that the incidence of duty has been passed on. The claimant appealed this order and made various submissions before the Commissioner (Appeals). The Commissioner (Appeals) asked for a report to be furnished by the jurisdictional Deputy Commissioner on the submissions that the assessee made, and acting on the report that he furnished, has held that the incidence of duty has not been passed on.

3. In paragraph 6 of his common order, the Commissioner (Appeals) says that the report of the Deputy Commissioner makes it "crystal clear" that the incidence of duty has not been passed on. The Deputy Commissioner's report does not lead, in our opinion, to any such conclusion. His report dated 5.7.2002, after dealing the member of team, who carried out the verification, and indicting broadly what verification was undertaken has summarised four conclusions which is that emerged. The third conclusion read as follows: "That, on scrutiny it is revealed that in the GP1s the assessable value is arrived at by showing the rate per unit as less 10% of the price indicated in the commercial invoice and duty is discharged accordingly. However, in the Commercial invoice issued to their distributors 20% discount is passed on to the buyer whereas in case of direct sales they are passing on discount to the tune of 12.5%, 12%, 10% and 8% respectively. Also the appellants vide their letter dtd. 05.7.2002 have admitted that in certain cases the rate charged in sales invoice is higher than the GP1 and an excess amount of Rs. 1,83,274/- is collected from the buyers. In view of the above refund claim is required to be reduced to that extent." 4. In paragraph 4, the Deputy Commissioner says that from the above verification of the certificate of chartered accountant, "it appears" that the assessee had not passed on the burden of incidence of duty except the amount mentioned above.

5. We do not find it possible to say that this report of the Deputy Commissioner makes it clear that the incidence of duty has not been passed on. If the Commissioner (Appeals) has come to the conclusion that it did so, he could, and in our opinion, should have expressed that conclusion in clearer terms, than the report of the Deputy Commissioner has done. As the matter stands, and after hearing both sides for some, we do not think that the Commissioner (Appeals)' order, based on what appears to be an unclear report, which is admittedly based on random scrutiny of document can be upheld. We therefore, think it appropriate to remand the matter to the adjudicating authority deciding, on the basis of the documents that the assessee had produced before the Commissioner (Appeals) whether the incidence of duty has or has not been passed on. Either side is at liberty to produce evidence in support of its claim as relevant. The Deputy Commissioner shall, after considering the evidence, pass orders on the claims in accordance with law.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Mumb... Same Parties Commissioner of Central Excise vs Cadila Veterinary Co. Same Subject Land Acquisition Same Judge S T Gowri, A Wadhwa