- (1.) The appellant made an application for refund of excise duty paid during the period April 1990 to June 1990, on the ground that the product was cleared by paying higher duty as against duty specified under the notification. Application for refund was rejected on the ground that the appellant had already recovered the duty from the customers. On appeal to the Tribunal, matter was remanded for a fresh decision, after making observation that the Assistant Commissioner should verify the claim of the appellant that their selling rates remained unchanged irrespective of the duty burden. The said observation was made on the basis of judgment of the Madras High Court in Dollar Company, Madras v. Govt. of India 1986 (24) E.L.T. 245. It was also observed that amended provisions of Section 11B of the Central Excies and Salt Act, 1944 (for short, the Act) may also be examined.
(2.) After remand, it was observed by the learned Assistant Commissioner that there was no increase in the selling price and in fact selling price had decreased but since price was inclusive of duty, it could be presumed that burden of duty was passed on. This view was affirmed by the Tribunal, relying upon judgment of the Hon'ble Supreme Court in Mafatlal Industries v. Union of India and also after referring to observations of the Tribunal in Commissioner of Central Excise, Goa v. Christine Hoden (I) Pt. Ltd. .
(3.) Observations of the Hon'ble Supreme Court in Mafatlal (supra), which were relied upon, are as under: Just because duty is not separately shown in the invoice price, it does not follow that the manufacturer is not passing on the duty. Nor does it follow therefrom that the manufacturer is absorbing duty himself. The manner of preparing the invoice is not conclusive....;