1. The appellant company challenges the order-in-appeal passed by the Commissioner (Appeals) on 29.6.2005, upholding the order-in-original by which the Assistant Collector had rejected all the four refund claims of the appellant.
2. The appellant was engaged in the manufacture of sugar molasses. Four refund claims were filed by the appellant on the ground that 2% of the education cess was levied on excise duty only with effect from 8.7.2004. The appellant had charged and paid education cess as per the invoices issued after 8.7.2004. The appellant, in view of the circular dated 20.7.2004 of the Indian Sugar Mills Association and the circular of the CBEC dated 10.2.2004, clarifying that education cess was applicable only on the production after 8.7.2004, made the refund claims with the supportive evidence such as TR-6 challan showing payments, and copy of the circular of the Association.
3. The case of the assessee was that, the education cess was borne by the appellant and that the incidence of duty was not passed on to the buyers. The Assistant Commissioner noticed that, the prices were fixed by the Sugar Federation, Punjab Government and Taxation Department which were inclusive of all taxes. The sample invoices, which were examined showed that they contained particulars of the rate of duty and the break-up of taxes including excise duty. After examining the invoices, it was found that incidence of duty had been passed on to the buyers. Therefore, the appellant was held to be not entitled to any refund of the education cess amounts. The Appellate Commissioner approved the findings of the Assistant Commissioner rejecting the refund claims, relying on the decision of the Tribunal in JCL International v. CCE, Ghaziabad, found that, the excise duty including education cess had been duly reflected in the invoices, which fact was not disputed by the appellant. The order-in-original in respect of the said four show cause notices were, therefore, upheld.4. The learned Counsel appearing for the appellant contended that the appellant had inadvertently paid the education cess on the stock lying on 8.7.2004, when it was removed under the subsequent invoices and, therefore, the refund was admissible. He submitted that merely because the amount of education cess was shown in the invoices, it could not be inferred that the amount was recovered by the appellant. He also submitted that, since there was no price variation and the rates for the sales were settled prior to the date of levy of cess, doctrine of unjust enrichment could not have been invoked for denying the refund.
5. There is no dispute over the fact that the amount of education cess was separately shown in the invoices, which were issued by the appellant. When there was positive documentary evidence showing that the education cess was recovered, mere assertion that the education cess was borne by the appellant cannot help the appellant. The provisions of Section 11B of the Central Excise Act, 1944, would also apply to education cess because education cess levied under Section 91 of the Finance (No. 2) Act, 2004, "shall be a duty of excise" as provided by Section 93(1) and the provisions of the Central Excise Act, 1944 including those relating to refunds are made applicable to the levy under Sub-section (3) of Section 93 of the Finance (No. 2) Act, 2004.
6. There is no substance in the contention that, since the sugar was sold to the customers at the same price prior to the levy of education cess and the rates were settled by the Sugar Federation, Punjab Government and Taxation Department, it should be held that the education was not passed on to the customer. The Hon'ble the Supreme Court in para 18 of the judgment, in CCE v. Allied Photogaphics India Ltd., uniformity of price before and after the assessment does not lead to any inevitable conclusion that the incidence of duty was not passed on to the buyer, because uniformity may be due to various factors. In the present case, since the price fixed by the Sugar Federation, Punjab Government and Taxation Department was admittedly inclusive of all taxes, there is a clear indication that burden of taxes including education cess was passed on as a part of the price charged. There is, therefore, no substance in this appeal and it is, therefore, dismissed.