Per S.S. Kang:

These appeals are filed against the common order in appeal therefore these are taken up together for final disposal. The appellants filed these appeal against the common order in appeal passed by the Commissioner of Central Excise (Appeals) whereby he upheld the finding of the Assistant Collector of Central Excise. The Assistant Collector of Central Excise held that it is established beyond doubt that appellant has actually collected the Central Excise duty from the buyers and had thus passed on the incidence of duty from their own shoulders to the buyers and no refund accrue on them on this count as per unjust enrichment clause under the provisions of Section 12B of the Central Excise and Salt Act, 1944. The Assistant Collector sanctioned the refund and ordered that the amount be credited to the consumer welfare fund under Section 11B (2) and 12C of the Central Excise and Salt Act, 1944.

2. Ld. Counsel appearing on behalf of the appellant submits that respondents has wrongly held that appellants had passed the burden of duty to the buyers. He submits that the balance sheet of the appellants indicate that the Central Excise duty has been paid by the assessee and debited in the expenditure account. He further submitted that sale invoice indicate that in addition to the price, the appellant has only charged sale tax or Central sales tax and no Central Excise duty has been charged from the buyers. He also relied upon the certificate issued by the Chartered Accountant certifying that Central Excise duty element has not been passed on to the buyers. He also submitted that the appellants produced the evidence to the effect that buyers has not availed the modvat credit in respect of the duty paid by the appellants. In these circumstances he prays that the burden of duty has not been passed on to the buyers.

3. Shri D.K. Nair, JDR appearing on behalf of the respondents submitted that the provisions of Section 12B of the Central Excise and Salt Act, 1944 provides that there is presumption that duty is passed to the consumers unless it is proved otherwise. He relied upon the decision of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. Vs. Union of India reported in 1996 (17) RLT 907 (S.C.)= 1997 (89) ELT 247. He submitted that the relevant GP.1 shows that the amount of duty paid. He submits that there is nothing on record to show that the duty amount has been deposited by the appellants and it has not been recovered from the buyers. He submits that the balance sheet shows that duty has been paid from the Income. Therefore it means that they have collected the duty from the sale of goods. He therefore, prays that the appeals be dismissed.

4. Heard both sides. The only short question involved in this appeal is whether the burden of duty has been passed on to the buyers or not. The adjudicating authority in the order-in-original held that in gate passes in the instance case indicate the amount of Central Excise duty paid by the party and the invoice indicate the total price inclusive of all taxes. The appellants were not bound by the Central Excise law to indicate the duty element separately on invoice since the statutory Central Excise document was mentioned in the gate pass. It was a practice to issue gate passes and invoice both in the name of the customers and indicate the duty element on gate passes only. In any case both were to be correlated and read together. Hence the above practice by no way alternate the fact that duty is being charged from them from their buyers.

5. The appellant relied upon the certificate issued by the Chartered Accountant. We find that the certificate issued by the Chartered Accountant does not show any details of sales price of the goods and the details of other particulars. The certificate simply certifies that the firm has not charged any excise duty from its customers and the excise duty has been deposited by the firm from their own under protest as verified by us from the