M.M. Kumar, J.
1. The revenue has preferred the instant appeal under Section 35-G of the Central Excise Act, 1944 (for brevity, 'the Act'), against final order dated 24.2.2004 (A-3), passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for brevity, 'the Tribunal') for the assessment period from January 1998 to November 1998. The revenue has sought to raise the following question of law for determination by this Court:
Whether the order passed by the CESTAT allowing appeal of the Respondent while ordering refund of the excess paid duty, chargeable under sub-heading 5703.90 of the Schedule to the Central Excise Tariff Act, 1985, is illegal in view of the judgment of the Supreme Court in Civil Appeal Nos. 6559-6560 of 1997 - Commissioner of Customs & Central Excise and Ors. v. Charminar Nonwovens Ltd. and is liable to be considered by the learned CESTAT afresh.
2. At the hearing, Mr. Gurpreet Singh, learned Counsel for the revenue has referred to the observations made by the Commissioner (Appeals) in the last para of his order dated 24.7.2003 (A-2) and argued that in the price declaration dated 27.1.1998 the assessable value and duty have been shown separately in respect of various varieties. The sale price at the depot constitute the assessable value of the duty of the Central Excise. Learned Counsel has emphasised that the Assessee-Respondent has passed on the duty incident to the buyer of the finished goods and, therefore, it would not be entitled to retain the same. He has maintained that the doctrine of undue enrichment would apply.
3. Mr. v. Lakshmikumaran, learned Counsel for the Assessee-Respondent has, however, argued that no question of law much less a substantial question of law would arise for determination of this Court because pure findings of fact have been recorded by the Tribunal. According to the learned Counsel, order of the Commissioner at the first instance cannot be referred for the purposes of displacing the findings recorded by the Tribunal. He has maintained that such a course would be disastrous and would take away all the rights of the Assessee, which have emerged from the order of the Tribunal. On merit, learned Counsel has submitted that the order of the Commissioner needs to be clarified because under Rule 52A of the Central Excise Rules, 1944 (for brevity, 'the Rules') there is a mandatory requirement of law requiring every manufacturer to furnish various particulars in the invoice, irrespective of the fact whether duty is payable or not.
4. Mr. V. Lakshmikumaran has maintained that if invoice in the specified proforma is not submitted then the goods can be seized. A perusal of entries at Sr. Nos. (ix) to (xiii) shows that these particulars relate to duty and Sr. No. (xiii) specifically deals with total duty paid which create a wrong impression that the goods have suffered duty and that the Assessee is retaining that part of the duty. Learned Counsel has maintained that this is the precise reason for the Tribunal to have not entered into this controversy because no argument to that effect was available to the revenue.
5. After hearing learned Counsel for the parties we are of the considered view that the appeal is liable to be dismissed on the short ground that no question of law much less a substantial question of law would arise for determination of this Court. In support of the view reliance may be placed on the Division Bench judgments of this Court rendered in the cases of Commissioner of Central Excise, Ludhiana v. Bharat Box Factory Ltd. 2007 (218) E.L.T. 355 (P&H;); Commissioner of Central Excise, Ludhiana v. Varinder Agro Chemical Ltd. 2007 (219) E.L.T. 160 (P&H;); and Commissioner of Central Excise, Gurgaon v. Alcatel Modi Network System Ltd. 2008 (221) E.L.T. 358 (P&H;).
6. Even otherwise we find no substance in the argument raised by the learned Counsel for the revenue that the invoices produced before the Commissioner (Appeals) leads to the conclusion that duty has been charged by the Assessee and the principle of undue enrichment would apply. However, the aforesaid argument cannot be sustained in view of the fact that invoice to which reference has been made by the Commissioner (Appeals) have been issued in pursuance of statutory requirement of Rule 52A of the Rules.
7. The mandate of Rule 52A(1) of the Rules is that the excisable goods could not be delivered from the factory or a warehouse except under the invoice duly signed by the owner of the factory or his authorised agent. If any of the goods which are covered by the provisions of Chapter VIII A and are removed on payment of duty then such invoice is required to be counter signed by the proper officer. The provisions of Sub-rule (1) of Rule 52A of the Rules reads thus:
52A. Goods to be delivered on an invoice. - (1) No excisable goods shall be delivered from a factory or a warehouse except under an invoice signed by the owner of the factory, or his authorized agent:
Provided that when the excisable goods, other than those to which the provisions of Chapter VII-A apply, are removed on payment of duty such invoice shall be required to be countersigned by the proper officer.
Explanation-In this rule, and in any other rule, where the term invoice or gatepass, as the case may be, is used it shall mean
(i) Assessee's own document such as invoice, challans, advice or other document of similar nature generally used for sale or removal of excisable goods and which shall contain all the particulars as required under the said Act or in these rules; or
(ii) such other form as the Central Board of Excise and Customs may notify.
8. It is further profitable to refer to the Standard Form invoice, which is used under Rule 52A(1) of the Rules and the same reads thus:
Invoice-Particulars required to be incorporated in the invoice
(i) Full postal address of Range and Division:
(ii) Name, address and Code Number/Registration Number of Factory/Warehouse:
(iii) Name and Address of consignee:
(iv) Description and Specification of goods:
(v) Number and Description of packages:
(vi) Total quantity of goods (net):
(vii) Total price of goods:
(viii) Details of deductions/additions made to arrive at value under Section 4 of the Act:
(ix) Assessable value/Tariff value per unit:
(x) Total assessable value/tariff value:
(xi) Tariff Heading Number/Exemption Notification No.:
(xii) Rate of duty:
(xiii) Total duty paid (Both in words and figures):
(xiv) Serial Number of debit entry in PLA/RG23:
(xv) Date and time of issue of invoice:
(xvi) Date and time of removal of goods:
(xvii) Mode of transport and motor vehicle Registration No.:
(xviii)Appropriate certificate as below:
Certified that the particulars given above are true and correct and the amount indicated represents the price actually charged and that there is no flow of additional consideration directly or indirectly from the buyer.
OR
Certified that the particulars given above are true and correct and the amount indicated is provisional as additional consideration will be received from the buyer on account of ...Note:
(i) Value indicated against S. No. (ix) and (x) shall correspond to the assessable value determined in invoice or as indicated in the declaration filed or tariff value as the case may be.
(ii) The rate of duty and the amount of duty given against S. No. (xii) and (xiii) should be indicated separately for each type of duties, such as basic duty, additional duty, cess etc.
9. In pursuance to Rule 52A of the Rules the Assessee is required to furnish various particulars/declarations as per Serial No. (ix) to (xiii) of the proforma as reproduced above. It is not a case where the Assessee had paid any duty and recovered the same. The declaration in the invoice is in pursuance of statutory requirement. Therefore, the doctrine of undue enrichment would not be attracted to the facts of the present case. The appeal is wholly mis-conceived and the same is liable to be dismissed.
10. As a sequel to the above discussion, this appeal fails and the same is dismissed.