Refund of excess duty upheld where the assessee bore the higher duty payment and the Department produced no contrary evidence.

A 100% export-oriented unit was held entitled to refund of excess duty where it had collected duty from customers at 5% but had actually paid 10% under the relevant notifications. The lower authorities' concurrent factual finding that the assessee bore the 5% excess was accepted, because the Department produced no evidence to show that 10% duty had been recovered from customers and the show cause notice also did not make that allegation. In the absence of contrary material, there was no basis to deny refund, and the Revenue's challenge failed.

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Issues: Whether the assessee, a 100% export-oriented unit, was entitled to refund of the excess duty paid where it had recovered duty from customers at 5% but had actually paid duty at 10% under the relevant notifications.

Analysis: The factual finding recorded by the lower authorities was that the assessee had charged only 5% duty from customers and had paid 10% duty, thereby paying 5% in excess. The Department adduced no evidence to dislodge this finding, and even the show cause notice did not allege that the duty recovered from customers was 10%. In the absence of any contrary material, there was no basis to interfere with the concurrent factual findings that the excess duty had been borne by the assessee.

Conclusion: The assessee was entitled to refund of the 5% excess duty paid, and the Revenue's challenge failed.

Final Conclusion: The order allowing refund was sustained, and the Revenue's appeal did not succeed.

Ratio Decidendi: Where the concurrent findings establish that duty collected from customers was lower than the duty actually paid and the Department produces no evidence to the contrary, refund of the excess duty cannot be denied.

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