CEA No.118 of 2010 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.E.A.No.118 of 2010 (O&M) Date of decision: 1.10.2010 M/s Steel strips Limited -----Appellant Vs. The customs, Excise and Service Tax Appellate Tribunal, New Delhi and another ----Respondent CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON’BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Akshay Bhan, Advocate for the appellant. Adarsh Kumar Goel,J. 1. This appeal has been preferred by the assessee under section 35G of the Central Excise Act, 1944 (for short, ‘the Act’) against order dated 13.8.2009 in Appeal No.5733 of 2004 passed by the Customs Excise and Service Tax Appellate Tribunal, New Delhi, proposing to raise following substantial questions of law:- “i) Whether in the facts and circumstances of the present case the present appellant is rightly claiming the refund of duty when the incidence of duty has not been passed on to the customers and the question of unjust enrichment does not arise is legally sustainable in the eyes of law? ii) Whether in the facts and circumstances of the present case the provisions of section 11-B of the Act apply when the duty has been paid under protest is legally sustainable in the eyes of law? iii) Whether in the facts and circumstances of the present case, the action of the authorities below in not following the judgment of the Hon’ble Apex Court is sustainable in the eyes of law? 1 CEA No.118 of 2010 2. The assessee is manufacturing cold rolled strips and paid duty under the provisions of the Act. Later, application for refund was filed on the ground that for the period from 1.4.1992 to 31.3.1998, duty was not payable and was wrongly paid. By order of Hon’ble the Supreme Court dated 27.4.2003, the matter was remanded to the adjudicating authority to examine whether it was a case of unjust enrichment in which case the appellant may not be entitled to refund. After due consideration, finding was recorded by the adjudicating authority against the appellant which was affirmed on appeal as well as on further appeal by the Tribunal. The Tribunal observed:- “We have carefully considered the submission made from both sides. The requirement of Section 12A to indicate the duty amount in the gate passes/invoices is to make the buyers know the amount of duty payable by them. In the present case, the appellant have indicated the duty amount in the gate passes/invoices which are statutory documents. The submission of the learned Jt. CDR that such mentioning of duty amount in the gate passes/invoices will amount to evidence for passing on such burden deserves to be accepted. Doubt may arise only when the amounts are not indicated in the gate passes or invoices. Even in such cases, the burden to prove that the duty element has not been passed on to the consumer is squarely on the assessee as has been settled by the Hon’ble Supreme Court by various judgments. Further, it not even the case of the assessee that they have not collected the amounts mentioned in the invoices.” 3. We have heard learned counsel for the appellant. 4. Learned counsel for the appellant submits that mere fact that in gate passes/invoices, duty payable was mentioned which was never 2 CEA No.118 of 2010 factually received, it could not be held that the assessee had passed on burden to the consumers and thus the finding of unjust enrichment was erroneous. 5. We are unable to accept the submission. The adjudicating authority, the Commissioner as well as the Tribunal have concurrently held that the assessee will be deemed to have passed on the burden of duty once the gate passes/invoices showed that that duty was part of the invoices issued. The Tribunal has referred to several judgments consistently holding that in such a situation presumption is that the duty has been passed on to the consumers and the said presumption is not rebutted merely by the fact that the assessee did not actually realize the amount. Once the duty is added in the invoices, the purchaser gets benefit of MODVAT credit. Learned counsel for the assessee has not been able to show any law that in such a case, the burden on the assessee will stand discharged. In absence thereof, the concurrent finding that the assessee passed on the burden of duty is not liable to be disturbed. No substantial questions of law arises. 6. The appeal is dismissed. (Adarsh Kumar Goel) Judge October 1, 2010 (Rajesh Bindal) ‘gs’ Judge 3